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IV. THE CLASSICAL PERIOD

There is reason to believe that the change from
thesmos to nomos as the official term for “statute” in
Athens was sudden and that it was the result of a
deliberate policy (Ostwald [1969], Part III). After
511/10 B.C. thesmos is no longer applied as a current

term to the statutes that were enacted; and, although
nomos appears before that date (but only outside
Athens), it does not carry the meaning of “statute”
before the fifth century B.C. Moreover, the use of nomos
in the sense of statute is first attested in Aeschylus'
Supplices (387-91), first performed in 464/3 B.C., so
that the adoption of a new term to replace thesmos
must fall within the period 511/10 and 464/3. That
it is associated with the most important internal event
in Athens during this period, the overthrow of the
tyranny and the democratic reforms of Cleisthenes of
507/6, is corroborated by the fact that we find at the
same period in the Harmodius songs the first emergence
of the only early nomos-compound which has political
overtones, isonomos, as a term which celebrates the
establishment of a democratic form of government in
Athens. It is likely, therefore, that the rise of nomos
is closely linked with the rise of the Athenian democ-
racy; and the uses of the term in extra-legal contexts
both before and after 511/10 lend weight to this sup-
position.

Etymologically nomos is derived from the root nem-,
which signifies a “distribution” or an “assigning” of
some kind, seen less from the point of view of an agent
making the assignment than from the standpoint of the
person to whom the assignment has been made. But
the idea of distribution does not go very far in explain-
ing the basic concept underlying nomos as “law,” and
we depend on an examination of the different contexts,
legal as well as nonlegal, in which it is used to deter-
mine its nature. Such an examination will lead us to
the conclusion that nomos describes an order of some
kind, which differs from the order expressed in the
early archaic age by themis in that it sees its sanction
in its acceptance by those who live under it and who
acknowledge it as valid and binding for themselves.
It is, therefore, not part of a universal order but of
a limited social order, nor is it like thesmos something
imposed by an external agent; even when it is attrib-
uted to a god or a lawgiver, the source of its validity
always remains its general acceptance as a norm by
those who constitute a given milieu.

In its widest sense, nomos denotes an order of living,
a way of life, and it is in this sense that the word is
first attested in Greek literature. According to a
Hesiodic passage, discussed in a different connection
above, Zeus ordained for men the nomos that they
should live with dikē, while the beasts which live with-
out it should devour one another (W.& D. 276-80, cf.
Theog. 66). The point here is not that nomos is god-
given, but that Zeus's arrangement is regarded as the
valid norm by beasts as well as by men. For each kind
nomos is their own way of life. Theognis uses nomos
in this sense of the perverted norms with which the
present rulers govern Megara (289-90); and in the fifth
century it is applied by Aristophanes to the ways of
the birds (Birds 1344-45), by Euripides to the ways
of the gods (Hippolytus 98) and of mortals (Supplices
377-78). A similar nomos describes specific institutions
which make up the normal order of things. Thus it
is nomos that the union of male and female will result
in children (Aeschylus, Agamemnon 1207), that blood
spilled will demand more blood (Aeschylus, Choephoroe
400), that all great things entail destruction (Sophocles,
Antigone 613-14), or that men defend themselves
against enemy attacks and kill their opponents in battle
(Thucydides 3. 56. 2, 66. 2).

To this some uses of nomos are related which define
the proper way in which something is done or the
normal or proper conduct of an individual. For the
former of these we may cite Hesiod's injunction to strip
for sowing, ploughing, and harvesting (W.& D. 388),
Aeschylus' description of the natural and proper
formulation of a prayer (Choephoroe 93), Pindar's pre-
scription for horse-breeding or the way of using drugs
(Isthm. 2. 38, Nem. 3. 55), or Herodotus' tale of how
the lake-dwellers build their houses (5. 16. 2). Normal
human conduct under given circumstances or for a
particular kind of individual is described as nomos
frequently by Euripides, who applies the term, for
example, to the new standards of behavior which a
woman has to adopt after marriage (Medea 238), to
the rule to help the shipwrecked (Cyclops 299), to the
love which all living creatures have for their offspring
(frag. 346), to the rule of the gods not to interfere in
each other's province (Hippolytus 1328), and many
more. In short, in these cases, too, nomos denotes a
norm accepted by most people.

A rather different sense of nomos describes the
source that issues and guarantees those norms which
are regarded as an obligation by those whose norms
they are. It is first found in Heraclitus' statement that
all human nomoi are sustained “by one the divine”
(frag. 114). The “human nomoi” refer evidently to the
mores prevailing in the several city-states; but the “one
the divine” seems to be a nomos which transcends
them, being the source on which they depend. The
same kind of nomos is apparently that of which the
Erinyes complain that they have been deprived
(Aeschylus, Eumenides 778-79 to 808-09) as well as
the nomos which, they allege, Apollo transgressed in
honoring Orestes (ibid. 171). The “ancient nomoi” of
Zeus, too, mentioned by both Aeschylus and Sopho-
cles (Supplices 670-73; Oedipus at Colonus 1382),
must be the source of norms rather than the norms
themselves; and when Creon states in the Antigone
(177) that the ability of a man is not fully known until
he has been testedἀρχαι̃ς τε καί νόμοισιν, it is obvious
that his authority in issuing regulations is meant.

A value judgment is attached to nomos when it

describes that state of law-and-order or of a civilized
existence which results from the adherence to accepted
norms by all members of the community. nomos here
has connotations similar to those which eunomia has
elsewhere in Greek literature, and it takes the place
assigned to themis in one of its uses in the early archaic
period. For example, while in Homer the uncivilized
state of the Cyclopes was expressed in the words “he
knows well neither dikai nor themistes” (Od. 9. 215),
Herodotus expresses the same lack of civilization of
the Androphagi by saying that they do not practice
dikē and use no nomoi whatever (4. 106). This use of
nomos, also in juxtaposition with dikē, appears for the
first time in Theognis (54) and is found frequently
without dikē and in a positive sense throughout the
fifth century. In Sophocles Ismene bases her refusal to
support Antigone on the argument that it would be
a violation of nomos to defy the tyrant's decree (Antig-
one 59), Orestes justifies his murder of Aegisthus by
saying that anyone who transgresses nomos should be
killed (Electra 1506), and Theseus boasts that Athens
accomplishes nothing without nomos (Oedipus at
Colonus 914). In Euripides, Jason cites the availability
of nomoi as one of the benefits he bestowed upon
Medea by bringing her to Greece (Medea 538); and
among the prose authors the most interesting appli-
cation of the term is found in Thucydides' report of
the speech of the Thebans against the Plataeans, in
which they describe the reestablishment in Thebes of
an orderly government, opposed to tyranny as well as
to a narrow oligarchy as τοὺς νόμους ἐλαβε (3. 62. 3-5).

From these nomoi, which are thought of as prevail-
ing among all decent men and in all societies, we now
turn to regulations whose validity is envisaged within
a narrower compass, because they describe the mores
of a particular community. In this category belong the
many nomoi which all Greeks share in common
(Herodotus 6. 86β. 2, 7. 102. 1; Euripides, Orestes 495,
frag. 853; Thucydides 1. 41) and by which they are
differentiated from the nomoi of non-Greeks (Euripi-
des, Andromache 243, Bacchae 484) and also those
nomoi which in Herodotus' account of Darius' experi-
ment each people likes best, viz., its own (3. 38. 4).
In this sense, too, nomos is applied to the mores of
a particular city, e.g., Athens (Aeschylus, Eumenides
693; Thucydides 3. 34. 4, 37. 4), Sparta (Herodotus 7.
136. 1; Thucydides 5. 60. 2), Thebes (Sophocles, Antig-
one 191; Euripides, Bacchae 331), Samos (Tod, No. 96.
15-16), Thessaly (Pindar, >Pythian Odes 10. 70-71), and
the many tribes and peoples, Greek and non-Greek,
whose nomoi fill the pages of Herodotus.

The use of the plural in nomoi (“mores”) shows that
these nomoi are the aggregate of a number of norms
which a people regards as valid and binding in its
social, religious, and political life, and for each of these
also nomos is the proper term. For social customs
(nomoi) prevailing in different communities Herodotus
is again our main source. To cite but a few: he likes
the Persian nomos which prevents a father from seeing
his child before the age of five, lest the child's untimely
death bring him grief (1. 136. 2-137. 1), and the
Babylonian nomos of auctioning off marriageable
women (1. 196. 1-4); but he does not like the Babylon-
ian custom of temple prostitution (1. 199. 1-5). Euripi-
des speaks of nomos in this sense when he mentions
the Greek custom of honoring athletes (frag. 282. 13),
of the Aetolian practice of going to war with only one
foot shod (frag. 530. 9), or of the Phoenician habit of
bowing down before a royal person (Phoenissae 294).
While in these examples nomos is treated as a valid
and generally accepted norm, other uses of the term
indicate that custom had come under attack: nomos
is used of practices which, though current, are in some
way reprehensible or at least not worthy of respect.
This is the case, for example, when Euripides calls
nomos the custom of heralds to give exaggerated re-
ports (Heraclidae 292-93), or when Orestes justifies the
murder of Clytemnestra by saying that he put an end
to the nomos of wives to kill their husbands (Orestes
571). In these instances, the use of nomos is obviously
facetious. But the very fact that it can be so used shows
that it is no longer immune to attack.

The devaluation of nomos becomes especially com-
mon when the term denotes a belief conventionally
held but which will not stand up to closer scrutiny.
When nomos first appears in this sense in extant Greek
literature, the fact that such a belief is commonly held
still gives it validity. This is the case in Pindar's famous
poem νόμος ὁ πάντων βασιλεές (frag. 169), where the
stature and reputation of Heracles are regarded as
justifying even his most violent deeds (see Ostwald,
op. cit., pp. 37-38), in the nomoi which sum up Creon's
convictions about the nature of a good citizen in
Sophocles' Antigone (178-79), or in the description of
the repute which, Alcibiades claims, his Olympic vic-
tories had brought Athens (Thucydides 6. 16. 2). But
when Empedocles (frag. 9. 5) says that, while it is more
correct to speak of “mixture” and “separation” than
of “birth” and “death,” he himself uses the less correct
terms nomōi, when he does not speak as a philosopher;
or when Democritus (frags. 9, 125) distinguishes be-
tween the true nature and the conventional appellation
of color, sweetness, and bitterness, nomos is assigned
an inferior place. From here it is only a small step
to its rejection, for example, in Euripides' statement
that illegitimate children are only nomōi, but not in
fact, inferior to legitimate offspring (frag. 141), and in
Callicles' championing physis (nature) over against
nomos (Plato, Gorgias 482e-484c).

The earliest application of nomos to religious ritual

is found in Hesiod (frag. 322, cf. Theog. 417); and
thereafter this use becomes so common throughout
classical Greek literature that a few examples must
suffice. nomos governs the deposition of a suppliant's
bough and the worship of Hermes (Aeschylus, Supplices
241, 220), the proper burial of the dead (Sophocles,
Ajax 1130, 1343; Antigone 24, 519; Herodotus 2. 36.
1, 3. 16. 3-4, 6. 58. 2; Thucydides 2. 52. 4), the granting
of asylum (Herodotus 2. 113. 2-3), the inviolability of
altars (Euripides, Helen 800, frag. 1049. 2), purification
rites (Euripides, Orestes 429, Hercules Furens 1361,
Helen 871), and many other religious practices and
beliefs. Since we are not told by whom religious nomoi
are given and since their observance seems to be more
important than the sanction behind them, we are justi-
fied in interpreting these nomoi as defining what is
generally accepted as the proper thing to do in relation
to the gods.

Finally nomos denotes those political and judicial
regulations which are our main concern here, since
they include nomos as the classical expression of the
Athenian concept of law. It is important to note, how-
ever, that although nomos in this sense is the proper
technical term for a written statute, in the first half
of the fifth century B.C. not every political or judicial
nomos is written. That the earliest surviving use of
nomos as “statute” occurs in Aeschylus' Supplices
(387-91), where it is a law governing the claims of
the next-of-kin over marriageable heiresses, has already
been mentioned. Since regulations of this kind may
have been part of Solon's legislation, we are justified
in assuming that the reference is to written legislation.
The same assumption is warranted in Herodotus' refer-
ence to Solon's nomoi (1. 29. 1-2); but it is extremely
doubtful that the nomos which gave the Athenian
polemarch at the time of Marathon the command of
the right wing of the army (6. 111. 1) was embodied
in a written document, and the same is true of the
nomos which prevented the Corinthians from giving
away ships without payment (6. 89). Similarly, in a
law from Halicarnassus of ca. 460-455 B.C. (Meiggs
and Lewis, No. 32): the fact that it refers to itself as
nomos shows that the term was used to describe a
written statute (lines 32, 34-35); but, when the same
law (lines 19-20) stipulates an oath to be taken nomōi
by jurors, we have no way of knowing whether the
oath was incorporated in a written law. In short, in
the early fifth century the question whether a given
statute existed in writing or not was of less interest
to the Greeks than that it was generally looked upon
as valid and obligating.

A similar ambiguity pervades Thucydides' references
to political nomoi. While he has Pericles ascribe the
nomos of delivering funeral orations to a particular
author, it is by no means clear whether or not he
thought of it as laid down in a written law (2. 35. 1),
and we are equally ignorant as regards the Corcyrean
nomos which forbade the cutting of vine poles in the
precinct of Zeus and Alcinous (3. 70. 5-6) or the nomos
which prescribed the rules of succession to the priest-
hood of Hera of Argos (4. 133. 3). But there is ample
evidence that during the last three decades of the fifth
century nomos increasingly assumed the connotation
of written positive law, which it kept as its primary
meaning ever after. Our early evidence comes chiefly
from Euripides and Aristophanes. Euripides explicitly
praises written laws as a bulwark against tyranny (Sup-
plices 433); but he also disparages them, just as he
criticized social nomoi, as inhibiting freedom of action
(Hecuba 864-67). Even when writing is not explicitly
mentioned, Euripides' use of nomos in the political or
judicial sense shows that he wrote against a background
of written legislation. We hear, for example, of decrees
through which laws are applied (Ion 1250-56, Heracli-
dae 141), of the nomos that a tie-vote of the Areopagus
results in acquittal of the accused (Electra 1268-69),
and the nomoi against murder (Orestes 941, Hercules
Furens 1322, Hecuba 291). Aristophanes calls the
Megarian Decree “written nomoi” (Acharnians 532),
refers to the Solonian nomoi about inheritance and
about the payment of debts on the first of the month
(Birds 1650, 1655-56; Clouds 1183-87), and in one
instance refers as nomos to the decree on public main-
tenance in the Prytaneion (Frogs 761-64), which sur-
vives in an inscription (Inscriptiones Graecae 12. 77).

This completes our account of the various connota-
tions of nomos which had evolved by the end of the
fifth century B.C. There is no need to go beyond that
date, since no new connotations of the term arose in
the fourth-century orators and philosophers or in
Hellenistic times. On the contrary, although nomos
never quite lost any of the meanings which it had up
to the end of the fifth century, its primary use was
henceforth as the technical term for “statute” not only
in the forensic orators, such as Demosthenes, Aeschines,
and Isaeus, where one would expect this use, but also
in Plato and Aristotle.

What conclusion, then, can we draw from our dis-
cussion about the Athenian concept of law from the
classical period on? The fact that nomos may be trans-
lated as both “custom” and “law” has led some scholar
to the conclusion that the term originally signified
“customary law,” that is, customs and practices which
in the course of time were given legal as well as social
sanction by being embodied in a written code of laws.
But this position is untenable. For not only does the
Greek language fail to differentiate between “state”
and “society,” and not only is it impossible to reduce

all nomoi to “customs”; but, as we have seen, “law”
and “custom” are only two of about a dozen connota-
tions of nomos. In addition to them it describes a way
of life, norms of conduct and the source which guaran-
tees them, the mores of a political or social group,
law-and-order, conventional beliefs, and religious
practices. It is not the idea of “custom” that ties all
these connotations together, but the idea of an order
which, contrary to themis and thesmos, derives its
cohesion from the fact that it is, or ought to be, gener-
ally regarded as valid and binding by the members of
the group in which it prevails. For that reason nomos
is usually accepted as the valid norm; but even when
it is disparaged and rejected, its nonacceptance is
viewed as an isolated phenomenon and predicated
upon the general acceptance which it enjoys in the
community at large. As “law” it is, therefore, the
ratification of what the general consensus of a people
regards as a proper and valid norm for the conduct
of its own affairs, and it is no wonder that the Athenians
abandoned thesmos and chose nomos to express their
idea of law after they had expelled their tyrants and
established a democratic form of government.