University of Virginia Library

ANCIENT GREEK
IDEAS OF LAW

I

The absence from ancient Greek, as from English, of
a single word—and thus of a concept—to express that
body of legal principles which the Romans termed ius
as distinct from lex (cf. French droit: loi, German Recht:

Gesetz) constitutes only one feature which makes a
discussion of Greek concepts of “law” difficult. A sec-
ond problem arises from the scanty source material.
We can speak of Greek concepts only for the early
archaic period (ca. 750-ca. 600 B.C.0 for which the
Homeric poems provide approximately the same kind
of evidence for Greek Asia Minor as Hesiod provides
for the mainland. For the rise of independent city-
states, each with its own legal system, militated against
the development of one concept of law, valid for the
entire Greek world; moreover, since our evidence for
the later archaic (ca. 600-ca. 500 B.C.) and for the
classical periods (ca. 500-323 B.C.) comes almost ex-
clusively from Athens, we have reliable access only to
Athenian concepts of law for these periods. This is less
of a loss than it might seem, because it was Athens
which bequeathed her concept of nomos to the
Hellenistic world in the wake of the conquests of
Alexander the Great. It is to these three periods, then,
that our attention will be confined.

A third factor, while presenting a further difficulty,
also provides a methodological key toward an under-
standing of the variety of concepts of “law” found in
Greek antiquity. None of the Greek expressions for
“law” either originated or is found in exclusively legal
contexts, but in addition to their legal connotations
they all played important parts also in such spheres
as cosmology, religion, politics, personal conduct, and
philosophy, and often in such a way that our compart-
mentalized concepts cannot exhaust their meanings.
Therefore, an examination of the range of usage of each
relevant concept will enable us to discover a basic idea
inherent in it and thus to differentiate the various
concepts from one another.

II. THE EARLY ARCHAIC PERIOD

Since written law, which contributes most decisively
to separating the sphere of law from other aspects of
human existence, did not make its appearance in most
of the Greek world before the seventh century B.C.
and in Athens not until Draco (traditional date: 624
B.C.), the concepts of themis and dikē, which dominate
throughout the early archaic period what we would
call “legal” thinking, denote concepts of law consid-
erably wider and more comprehensive than any later
terms. For that reason it is incorrect to apply our
notions of “unwritten law” to them, for where the
written law has not been conceived of, its opposite
cannot have been conceived of either.

Although themis plays a larger part than dikē in the
Iliad and dikē than themis in the Odyssey and in
Hesiod, the two concepts complement rather than
exclude each other. Both are part of a social order
which views them as having existed from time im
memorial and believes that they will continue to exist
without change, since the permanence of the order is
guaranteed by the gods. In fact, both themis and dikē
are often treated as divine persons, and both are in
many passages related to the supreme god, Zeus. While
the Iliad regards Themis as an Olympian deity (Iliad
15. 87-95, 20. 4; cf. Odyssey 2. 68-69), Hesiod makes
her the child of Earth (Gaia) and Heaven (Ouranos),
born even before Kronos and thus older than the
Olympian generation of gods (Theogony 135). After
Zeus had consolidated his power, he took her as his
second wife, and by him she became the mother of
Dike (Theog. 901-02; cf. Works and Days 256). If this
shows in a genealogical and personal form the interest
Zeus takes in the social order, Zeus' interest in them
is also evinced by many passages which do not treat
them as persons: it is Zeus who has entrusted the king
with his staff and themistes (Il. 2. 205-06, 9. 98-99),
it is Zeus who is concerned that in judicial proceedings
themistes be sorted out with straight dikē (Il. 16.
386-87; W.& D. 9), and it is the themistes of Zeus
which are to decide whether a royal person may be
killed (Od. 16. 403. See also for themis; Il. 1. 238-39;
Od. 11. 568-69, 14. 56-58; and for dikē; W.& D. 36,
239, 268-69, 276-80; Hymn to Hermes 312, 324;
Archilochus, frag. 94). Thus both themis and dikē are
permanent and immutable; although they both have
a beginning in cosmic time, there is never any sug-
gestion that they are the creation of man, that they
have a beginning in human society, or that they are
merely transitory, that is, that today's themis or, to a
slightly lesser extent, dikē will no longer be valid to-
morrow.

A further characteristic shared in common by themis
and dikē is that both operate only in the larger social
group. They do not function in the phratrē or the
family, the smaller groups of which society is com-
posed. This is shown best in Nestor's definition of the
lover of civil strife as a person “without phratrē without
themis, and without a hearth” (Il. 9. 63-64) to indicate
that he is rejected by every kind of association: being
without themis means exclusion from society in the
widest sense. According to Hesiod, dikē is confined
within the city (W.& D. 269). Similarly, the Cyclopes
are called athemistoi (“without themis”) because they
are food-gatherers and shepherds rather than peasants
and because they live the solitary existence of moun-
tain-cave dwellers (Od. 9. 106-15, 187-89). This is not
contradicted by the statement that “each one wields
themis over his own children and wives, and they do
not concern themselves with one another” (Od. 9.
114-15), for the themis here is themis only by analogy
with a normal society: the very absence of community
life denies the possibility of genuine themis. For that

very reason Polyphemus is described as “knowing nei-
ther dikai nor themistes” (Od. 9. 215).

But these similarities are rather general and may be
attributed to the way in which a society that has not
yet broken life into separate compartments regards
itself. Within this framework there are, however, sig-
nificant differences between themis and dikē, differ-
ences which can be articulated more readily in some
cases than in others. themis (derived from a stem
meaning “set,” “place,” “establish”) is the wider con-
cept of the two and tends to define those aspects of
the social structure which give order and regularity
to the whole, whereas dikē, whose etymology links it
to a stem meaning “show,” “point in a given direction,”
usually describes the place assigned to individuals
within human society: it seems originally to designate
claims or rights which define the place a person occu-
pies within a community, often with the connotation
that this place is actually or potentially assigned by
the verdict of a judge.

In view of this it is not surprising that dikē plays
no part in what we would call the constitutional and
religious aspects of law. Here themis holds the field
alone. The position of the king, as the keystone of the
political structure of society, is guaranteed by the staff
and the themistes which Zeus has given him (Il. 2.
205-06). These impose on him not only the right to
give counsel but also the obligation to take advice from
others (Il. 9. 98-102; cf. the beginning of an early epic,
the Cypria, in Proclus' Chrestomathy 1, where Zeus
deliberates with Themis about starting the Trojan War).
In short, the themistes constitute those rights, preroga-
tives, and obligations by virtue of which the king wields
power. One of the prerogatives is exercised by
Agamemnon when he claims for himself the right to
tempt the troops by proposing flight (Il. 2. 73-74); but
the other nobles have prerogatives, too, in that they
may dispute his proposals in assembly (Il. 9. 32-33).
The royal prerogatives impose on his dependents the
obligation to offer gifts to the king, and these gifts,
embodying the dual aspect of prerogative and obliga-
tion, are also called themistes (Il. 9. 156, 298). In return,
it is the king's themis to be ever ready to receive men
who may wish to consult with him on matters of policy
(Il. 24. 652). In short, it is on his themistes that the
king's singular status in the community is based. The
fact that he has received them from Zeus does not
mean, however, that royal decisions are divinely in-
spired or revealed by Zeus to the king, else it would
not be themis to contradict the king in assembly (Il.
9. 32-33). But it shows that the royal position in the
social and political order is sanctioned by the supreme
god, and this sanction suggests that it will continue
to be as it is for all time. If prerogatives are temporarily
denied, it is themis that they be restored or granted
at a later time: this at least is implied by Zeus's promise
to those who had been denied their honors and
prerogatives in the reign of Kronos (Theog. 395-96).

The constitutional prerogatives of the kings are
manifested primarily in the agorē, a term which de-
notes the institution of a political assembly as well as
the place where it is convened, and the agorē is, there-
fore, closely associated with themis. Themis is ordered
by Zeus to convoke an assembly of the gods (Il. 20.
4), and she also dissolves and seats the assemblies of
men (Od. 2. 68-69), where alone it is themis to chal-
lenge the king (Il. 9. 32-33). Moreover, agorē and
themis are closely related as places, the one for assem-
bly meetings and the other as the place of judgment,
in the Iliad (11. 807) and possibly also in the Odyssey
(9. 112).

In religious ritual we hear of a number of specific
commands and prohibitions which are described as
themis or ou themis (“not themis”) respectively to
indicate that certain ritual practices are part of the
established order of life. When a banquet is held in
honor of a god, it is themis to pour a libation and pray
to him (Od. 3. 45), and it is themis for men in their
several habitations to worship the gods and to offer
sacrifice at their altars (W.& D. 135-37). On the other
hand, it is ou themis that water touch the head of
Achilles before Patroclus funeral rites are completed
(Il. 23. 44-46) or that a person hated by the gods be
helped on his way (Od. 10. 72-75). In this context, too,
presumably belong the themistes of Phoebus Apollo
which are proclaimed by Minoan Cnossus and the
pronouncements which come from Apollo's oracular
shrine at Telphusa (Hymn to Apollo 393-96, 252-53,
292-93). It will be noted that the ritual themistes are
not prerogatives which have been entrusted to a person
but rules which men are expected to observe and the
observation of which is accepted without question as
part of the way things are in the universe.

“Rule” seems also to be one of the connotations of
themis in the administration of justice. This, at any rate,
is suggested by the fact that the administration of
justice rests with persons called dikaspoloi (“handlers
of dikē”) whom Zeus has entrusted with the guardian-
ship of the themistes (Il. 1. 237-39; cf. Od. 11. 186),
and that is presumably the reason why Hesiod once
applies the term themistopoloi to kings (frag. 10). The
themistes mentioned here cannot be identical with
those that constitute the royal prerogatives of ruling
and counselling; they look more like a body of legal
rules or principles on which judicial decisions are
based, rules which no doubt included procedural mat-
ters, such as taking an oath to confirm one's legal claim
(Il. 23. 581-85). Although in Hesiod jurisdiction is one

of the functions of kings (Theog. 80-86; W.& D.
248-50, 263-64), there is no evidence to affirm or to
deny that the Homeric dikaspoloi were identical with
the kings, even if their themistes, like those of the kings,
are derived from Zeus. Nor is there any reason to
assume that the divine assignment of the themistes to
the judge meant that his verdicts were regarded as
divinely inspired. One passage in the Odyssey, it is true,
has been adduced to support the contention that Zeus
was regarded as a source of law: as the suitors deliber-
ate about murdering Telemachus, Amphinomus pro-
poses first to ascertain whether the themistes of Zeus
approve the murder of a royal person (Od. 16. 403).
Since we are not told in what way Amphinomus
thought of conducting his inquiry, there is no need to
assume that he meant to ask an oracle for a specific
injunction. In fact, no other passage in early archaic
literature attributes specific legislation to a god, and
the role of the gods does not go beyond guaranteeing
the existing order as a whole. In view of that, the most
natural interpretation is that Amphinomus intended to
address his question to some human expert, possibly
a dikaspolos, knowledgeable about the rules prevailing
in the Zeus-given social order, in order to obtain from
him instructions how to act under the circumstances.
An expert of this kind might be a person like Nereus,
of whom Hesiod says that “he does not forget themistes
but knows just and kindly counsels” (Theog. 235-36),
that is, someone who fulfils among the living the func-
tion which Minos performs among the dead: a themis-
teuōn (“person who wields themistes”) who is asked
to issue dikai (Od. 11. 568-71).

In matters of jurisdiction themis is frequently found
in conjunction with dikē. In such contexts it seems to
refer not to legal principles upon which verdicts are
based, but to denote a “legitimate claim,” a “title,”
or a “right” which the verdict has conferred upon one
or both of the contending parties in a lawsuit. This
is shown by the standard expression
(“to separate rights by means of a verdict”)
with which Hesiod regularly describes the activity of
a judge. The purpose of a trial in the early archaic
period was not to establish the facts of a case but to
have each of the contending parties state his claim
under oath and to have the judge pass on the validity
of the opposing claims. The act of the judge is de-
scribed by the verb krinein—“separate,” “distinguish,”
“decide” (Il. 16. 387-88; Theog. 85-86, W.& D. 35-36,
221); dikē is the verdict by which a given claim is
validated, and themis is the validated claim, the right,
or the title. The fact that dikē is etymologically linked
to a complex which indicates “pointing in a direction”
explains why a just verdict is called “straight” and an
unjust verdict “crooked” (Il. 18. 508; Theog. 85-86,
W.& D. 35-36, 219, 221, 225-26, 250, 262, frag. 286),
and why the activity of issuing just verdicts is expressed
by the verb ithynein—“straighten” (W.& D. 263-64).
The adjectives “straight” and “crooked” are always
applied to dikē, and only once do we hear of “crooked
themistes” (Il. 16. 387), evidently because claims
authenticated by crooked verdicts are thought of as
being themselves crooked.

From its meaning “verdict” a number of other uses
of dikē can be derived. One of these is its application
to the occasion or place at which verdicts are given,
that is, to the session of the law court where legal
proceedings take place. Hesiod informs us, for example,
that Hekate sits en dikēi with reverent kings (Theog.
434) and Solon appeals to Earth to be his witness before
the court of time, ἐν δίκῃ χρόνου (Solon, frag. 24. 3;
cf. frag. 27, which may mean “obey the magistrates
both in court and out of court,” but both the reading
and the interpretation are uncertain). But the use of
dikē to describe a claim is more common, a claim
different, however, from that expressed by themis. For
while themis is used invariably of a claim which has
been authenticated by a verdict and which has thus
been recognized as part of the established order, dikē
denotes what is regarded by the claimant as a just claim
but which has not yet been validated or whose legiti-
macy is or may be contested; a claim, in other words,
which, though adjudicated, is looked upon as still open
to dispute. For example, it is with a view to claims
that Achilles might possibly still make that Odysseus
urges Agamemnon not only to deliver publicly the
promised gifts of reconciliation but also to invite him
to a banquet, so that Achilles may “lack nothing of
his dikē” (Il. 19. 180). Similarly, dikē is used of
Antilochus' protest that the prize awarded to Eumelus
in the funeral games for Patroclus is actually his due
(Il. 23. 542), and Hesiod describes as dikē his claim
against his brother, which has been submitted for
adjudication to the “gift-devouring princes” (W.& D.
39). In the Hymn to Hermes we find for the first time
the expression δίκην διδόναι καὶ δέχεσθαι to describe
the claim and counterclaim which is to be submitted
to adjudication, and which is, in this case, to be
weighed on Zeus' “scales of dikē” (312, 324).

Closely related to this is the contestable kind of dikē,
which comes close to the meaning of themis (“title,”
“right”), but differs from it in that the claim is open
to criticism and is not thought of as properly belonging
to the immutably established order. In Hesiod's state-
ment that he does not want to be righteous (δίκαιος)
if a less righteous person (ἀδικώτερος) has the greater
dikē (W.& D. 271-72), we are evidently dealing with
a claim of this kind. It seems to be a claim unfairly
validated by a judgment and Hesiod protests against

it. The same is implied in Theognis' contention that
evil men are corrupting the people by giving dikai to
the unrighteous—i.e., to those not entitled to them—in
order to increase their own profit and power (44-46);
and the converse, namely that an otherwise contestable
dikē will not be challenged, underlies his belief that
nobody will wish to deprive of respect and dikē a
distinguished man as he grows old (938).

Derived from its judicial sense as “verdict” dikē also
is the “punishment” or “retribution” assigned to the
doer of evil, and it is a punishment the justice of which
is never questioned. This meaning, which dikē retains
into the classical period and beyond, is first found in
Hesiod's warning that Zeus ordains dikē against those
who indulge in “evil arrogance and works of wicked-
ness” and that dikē will visit a city for the crooked
verdicts (dikai) with which people oppress their fellow
men (W.& D. 238-39, 248-51), and it assumes a central
role in Solon as the personified power of Retribution
(frags. 1. 7-8, 3. 14-16; cf. Anaximander, frag. 1, and
Heraclitus, frag. 94). The justice inherent in the idea
of dikē as retribution is positively expressed especially
in those passages in which dikē is contrasted with
hybris, as it is in Hesiod's exhortations to his brother
to listen to dikē and not incur hybris and to forget
violence because dikē will triumph over hybris in the
end (W.& D. 213, 217, cf. 275), or in Theognis' belief
that shamelessness and arrogance have vanquished dikē
all over the earth (291-92). In the Iliad this kind of
dikē, which may best be rendered as “justice,” is said
to be driven out by men who adjudicate crooked
themistes (Il. 16. 387-88; cf. W.& D. 224), while in the
Odyssey it is bracketed with all things good and proper
as being honored by the gods (Od. 14. 83-84). Hesiod
goes so far as to treat it as the differentia between man
and beast: to beasts Zeus assigned a way of life which
makes them devour one another, “since dikē is not
among them, whereas to men he gave dikē which is
the best by far” (W.& D. 276-80). Thus dikē becomes
the distinguishing feature of human civilization, an
aspect to which we shall return later.

Finally, some uses of dikē seem to reflect the view
that verdicts establish legal norms which are valid for
the community. Glaucus, the ruler of Lycia, preserved
his country by his might and by his dikai, that is, by
the norms he propounded through the verdicts he gave
(Il. 16. 542). Minos is asked for dikai among the dead
(Od. 11. 570), and in the Iron Age the norms of right
and wrong (dikē) reside in brute force (W.& D. 192).
The same dikai seem to be involved in Solon's convic-
tion that the good order (eunomiē) which his reforms
will create will “straighten out crooked dikai,” and that
after his reforms his laws will apply a “straight dikē”
to each person (frags. 3. 36, 24. 19).

The distinctions we have been drawing between the
use of themis and dikē in different spheres of human
life obviously do violence to the cultural context in
which they belong. For while we have to differentiate
the constitutional, religious, legal, and social aspects of
these terms in order to make them comprehensible to
ourselves and to find equivalents for them within our
conceptual framework, the differences among these
areas of life were less distinct for the Greeks of the
early archaic period. For them themis and dikē were
each one concept, regardless of how they were applied
in particular cases. The truth of this is particularly
evident as we now turn to the uses of themis and dikē
to describe certain social features of life and certain
ways of human behavior. Both themis and dikē in this
field treat behavioral norms as immutable and peren-
nial parts of the universe within which man has been
placed and without which community life would cease
to function. But while in many instances no difference
can be detected between the contexts in which one
term is preferred over the other, there is a general
tendency to find themis defining rules which govern
the correct relations into which men enter with one
another or with the gods, while dikē tends to describe
the essential characteristic of a group on the basis of
which a certain kind of conduct can be expected from
the individual members belonging to that group.

Thus themis regulates human behavior toward the
gods in the statement that it is ou themis to fight with
Poseidon (Il. 14. 386) or to help on his way a person
hated by the gods (Od. 10. 72-75), that it was ou themis
that Achilles' helmet be defiled in the dust as long as
a theios anēr (“godlike man”) wore it (Il. 16. 796-99),
or that it is themis for men in their several habitations
to worship the gods and offer sacrifice at their altars
(W.& D. 135-37). It governs relations within the family
when we learn that it is themis that a wife weep for
the husband she believes lost abroad (Od. 14. 130) or
that a son embrace his returning father (Od. 11. 451);
relations between the sexes in the statement that it is
themis anthrōpōn (“themis for humans”) that men and
women have sexual intercourse (Il. 9. 133-34, 275-76);
and relations between allies in Zeus's promise, as he
was trying to gather allies for his fight against the
Titans, to give honors and prerogatives to those gods
from whom Kronos had withheld them (Theog.
395-96). The most frequent use of themis in the de-
scription of social norms concerns the relation of host
and guest, that is, the relation of xeinoi to one another.
The hospitable entertainment of strangers and the
exchange of gifts with them is themis (Il. 11. 779; Od.
9. 268, 14. 56, 24. 286, cf. 20. 287); when a visiting
stranger asks for information, it is themis to give him
a truthful answer (Od. 3. 186-87); and when he is the

subject of a discussion, it is themis for him to partici-
pate in it (Od. 16. 91).

While themis thus describes the normal kind of
behavior in various human relationships, implying a
correct norm, deviations from which are possible but
reprehensible, dikē, which is in social contexts usually
accompanied by a genitive defining the group whose
dikē it is, denotes an intrinsic natural characteristic
from which certain modes of behavior can be expected;
it does not automatically imply a relationship, and
deviations from it, where possible, are not measured
by the yardstick of right and wrong at all. When it
is said of mortal men, for example, that it is their dikē
that in death fire consumes their flesh and bones while
their soul (psychē) flies off like a dream (Od. 11.
218-22) or of the Olympian gods that they are percep-
tible to men only as radiant light (Od. 19. 43), no
relationship is implied, and what is predicated is no
more than a simple fact of natural experience, namely,
the way in which a given group naturally behaves. In
the same vein, the dikē of old men is to sleep softly
after a bath and a meal (Od. 24. 254-55), and the dikē
of a man who has long been away from home is to
be dejected when asked about his ancestry (Od. 19.
167-70). The fact that seafarers go ashore and eat a
meal when their ship has landed is dikē (Hymn to
Apollo 458-61), as is the fact that slaves, fearful of their
new masters, give only small gifts to strange visitors
(Od. 14. 58-61). Two passages are interesting because
they describe deviations from dikē: Odysseus is said
to have been a remarkably good ruler in that he did
not follow the dikē of kings, whose treatment of people
is determined by their likes and dislikes (Od. 4. 691-92),
and the suitors are said to be extraordinarily wicked
because they do not follow the dikē of suitors of former
times, who used to provide a banquet and gifts for the
bride and her family rather than consume her property
(Od. 18. 275-80). In both passages it is significant that
it is the deviation from the norm which elicits praise
or blame; the norm itself remains merely descriptive
and morally neutral.

Yet it is often hard to determine why, in some of
the passages just discussed, themis is used in preference
to dikē, although it must be observed at the same time
that there seems to be no use of dikē for which themis
would have been more appropriate. For instance, the
themis, discussed above, that men and women have
sexual intercourse with each other, or that a wife weep
when she has lost her husband abroad, might just as
well have been expressed by dikē, and this is particu-
larly true of the statement that hybris is the themis
(rather than dikē) of mortal men (Hymn to Apollo 541).
We can only guess that in these cases, and perhaps
in some others too, an option was open to the poet
to view the action either as something right and proper
in terms of the relationship involved, or as a typical
natural characteristic, and that he adopted the first
alternative.

Closely related in sense to the use of dikē plus the
genitive is its use, normally in the plural, as the object
of the verb “to know.” When Nestor's rich experience
of life is described as “he knows dikai and mentality
better than anyone else” (Od. 3. 244), he is credited
with a knowledge of the different ways of people, and
dikai seems to be used in exactly the same sense when
we are told that the Cyclops lacks this kind of knowl-
edge (Od. 9. 215). Theognis' complaint (54) that those
who now hold power “knew formerly neither dikai nor
proper forms of behavior (nomoi)” points in the same
direction, for the implication is that the present rulers
were not brought up to know the ways of social con-
duct needed for the proper functioning of society. In
this context perhaps also belongs Hesiod's warning that
Zeus will notice what kind of dikē a city practices
(W.& D. 269), for, although the singular is used here,
the passage suggests that different kinds of dikē exist,
and the phrase “it does not escape his notice” is of
course merely a different way of expressing knowledge.

themis and dikē are the only terms in which a
concept of law can be expressed in the early archaic
period. But, as we have seen, they provide much more
than merely a set of legal rules by which right and
wrong are determined. They belong to a society which
is convinced that its own stability is guaranteed ever-
lastingly by gods, who have assigned to kings the
prerogatives that make them rulers and to judges the
principles by which disputes are to be adjudicated. The
verdicts of these judges legitimatize claims and rights
and establish binding norms for the community, and
the behavior of the members of the society toward one
another is regulated by a code which sanctions some
actions and forbids others. They are the only equiva-
lents of concepts of law in early archaic society; but
“law” is too narrow a term to encompass them.

Since themis and dikē constitute the bonds which
keep the structure of the larger society intact, they
are the hallmarks of the civilized life of the community.
The primitiveness and barbarity of the Cyclopes, a
pastoral gathering and nonagricultural society of
isolated mountain-dwellers, who know no authority
other than that exercised by the head of the family,
is brought out by their description as athemistoi and
“knowing athemistia” and as “knowing neither dikai
nor themistes” (Od. 9. 106-15, 187-89, 215, cf. 114-15.
See also Theognis 54). In the Iliad, themis is opposed
to forces destructive of society: the lover of civil strife
is without themis (Il. 9. 63), and Ares, the god of
destructive war, “knows no themis” (Il. 5. 761). Hesiod

presents the positive side of the picture when he
identifies dikē as a force conducive to the preservation
of society. As the daughter of Zeus and Themis, she
is the sister of Peace, Eirēnē, and Good Order, Eunomiē
(Theog. 901-02). Zeus gave mankind dikē to differen-
tiate it from the beasts (W.& D. 276-80), and that city
will flourish in which straight dikai are given to citizens
and strangers alike (W.& D. 225-27). Therefore also
dikē is the implacable foe of that peculiar trespassing
of the bounds of propriety which the Greeks called
hybris (W.& D. 213, 238-39; Archilochus, frag. 94), and
even though hybris may degrade dikē to violence in
the Iron Age (W.& D. 190-93; cf. Theognis' complaints
at 44-45 and 291-92), dikē will win out in the end
(W.& D. 217-18).

Another enemy of dikē in early archaic literature
is violence, bia (Il. 16. 386-88; W.& D. 275), but this
enmity does not survive unmodified into the late
archaic period. In a passage in which Solon boasts of
the accomplishments of his cancellation of debts
(seisachtheia), he attributes his liberation of the earth
and of Athenian citizens from bondage to his use of
his legitimate power (kratos) to fuse bia and dikē into
one (frag. 24. 15-16). That bia refers to the coercive
measures by which he made creditors give up their
claims is clear. But what is the point of dikē here? That
it does not refer to Solon's statutes emerges from the
fact that the written legislation is mentioned as a sepa-
rate and different achievement in the next sentence
of this poem (18-20). Nor does the context allow us
to interpret dikē as a verdict or norms established by
a verdict, since that would make nonsense of its associ-
ation with bia. In fact, although dikē in Solon may
still describe claims established by crooked verdicts
(frag. 3. 36), Solon no longer uses the term for the
verdict itself. In our passage it evidently refers to the
moral norm, justice, which has been redressed by means
of violence through Solon's authority, and in some
other passages, too, a moral rather than a legal aspect
of dikē is emphasized by Solon: it is the retribution
that will overcome the evildoer, late though it may
come (frags. 1. 8, 3. 12-16). Still, this does not mean
that dikē loses its legal connotations in Solon alto-
gether, for it is still used of the “straight” claim which,
he asserts, his legislation assures to each individual as
his due (frag. 24. 19), and it is still applied to the legal
proceedings in which justice is meted out (frag. 24.
3). But dikē no longer occupies the central place as
a concept of law in the strict sense which it occupied
together with themis in Homer and Hesiod.

These developments foreshadow the role played by
themis and dikē after the end of the early archaic age.
Unlike dikē, themis vanishes completely from current
legal usage and is found only as an archaism, generally
with religious overtones, in poetry and in elevated
prose passages in Plato. Dikē, on the other hand, re-
mained current in daily prose as well as in poetry, but
no longer as a concept of law in the sense in which
we have been concerned with it. For while it retained
the sense which it had, mainly in the Odyssey, of an
essential characteristic defining a group and continued
its development along the moral lines to which Solon
had pointed, the moral norm of justice and the idea
of a quasi-divine retribution, its use in legal matters
was narrowed to designate a private (as opposed to
a public) lawsuit, judicial proceedings, a trial, and the
punishment inflicted by the court. Thus it was deprived
of the central part which it had played in Homer and
especially in Hesiod, and whatever notions of “right”
(ius) may originally have been inherent in it were taken
over by the adjectival to dikaion, which, however,
never developed into a technical judicial term. In short,
themis and dikē as concepts of “law” come to an end
with the early archaic age and new terms take their
places.

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.

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.

BIBLIOGRAPHY

Citations of ancient authors are based on the Oxford
Classical Texts or, where these are not available, on the
Teubner texts. Citations from the fragments of Solon and
Theognis are taken from E. Diehl, Anthologia Lyrica Graeca,
3rd ed. (Leipzig, 1954-55), of Hesiod from R. Merkelbach
and M. L. West, eds. Fragmenta Hesiodea (Oxford, 1967),
of the Pre-Socratic philosophers from H. Diels and W.
Kranz, DieFragmente der Vorsokratiker, 6th ed. (Berlin,
1951-52), of the tragedians from A. Nauck, Tragicorum
Graecorum Fragmenta, 2nd ed. (Hildesheim, 1964), of in-
scriptions from E. Schwyzer, Dialectorum Graecarum
Exempla Epigraphica Potiora (Leipzig, 1923), M. N. Tod,
A Selection of Greek Historical Inscriptions, 2nd ed., Vol.
2 (Oxford, 1948), from C. D. Buck, The Greek Dialects
(Chicago, 1955), and from R. Meiggs and D. Lewis, A
Selection of Greek Historical Inscriptions to the End of the
Fifth Century B.C. (Oxford, 1969), and of papyri from Greek
Literary Papyri, ed. D. L. Page, Vol. 1 (London and Cam-
bridge, Mass., 1942).

The following is a selection of works helpful for further
study of Greek concepts of law: G. Busolt and H. Swoboda,
Griechische Staatskunde, 2 vols. (Munich, 1920-26); V.
Ehrenberg, DieRechtsidee im frühen Griechentum (Leipzig,
1921); H. Fränkel, Wege und Formen frühgriechischen
Denkens (Munich, 1960); F. Heinimann, Nomos und Physis
(Basel, 1945); R. Hirzel, Themis, Dike und Verwandtes
(Leipzig, 1907); J. W. Jones, The Law and Legal Theory
of the Greeks (Oxford, 1956); E. Laroche, Histoire de la
racine NEM- en grec ancien (Paris, 1949); K. Latte, “Der
Rechtsgedanke im archaischen Griechentum,” Antike und
Abendland, 2 (1946), 63-76; Albin Lesky, “Wertdenken in
der frühen griechischen Dichtung,” Gesammelte Schriften,
ed. W. Kraus (Bern and Munich, 1966), pp. 479-92; M.
Ostwald, Nomos and the Beginnings of the Athenian De-
mocracy (Oxford, 1969); T. A. Sinclair, A History of Greek
Political Thought (London, 1951); H. Vos, ΘΕΜΙΣ (Assen,
1956); E. Wolf, Griechisches Rechtsdenken (Frankfurt,
1950-).

MARTIN OSTWALD

[See also Constitutionalism; Democracy; Justice; Law, An-
cient Roman, Concept of, Natural; Right; State.]