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A Short History of Western Legal Theory the Greeks

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    Page 1 1The Greeks Greece as a Starting-Point The reason why Greece has a special place in the history of civilization is not merely that most departments of literature and the visual arts were there raised to levels which later ages agreed to regard as classical, that is, as permanent standards of excellence. It is also because the Greeks were the first people—at any rate, the first of whom Europe retains any consciousness—among whom reflective thought and argument became a habit of educated men; a training for some, and a profession or vocation for others, not confined to observation of the physical world and universe—in which the Egyptians and Babylonians had long preceded them—but extending to man himself, his nature, and his place in the order of things, the character of human society, and the best way of governing it.Other ancient peoples had contained priests and prophets whose teaching or whose poetic insights included perceptions of human nature and moral precepts; a lot of the Old Testament of the Jews, for example, could be put into that category. Similarly, other ancient peoples, since they had laws, must have had some capacity to reason about the function of a law and how best to make it achieve a particular purpose; this can be presumed of the civilizations of Mesopotamia, from whose ruins the great code of the Babylonian King Hammurabi (about 1800 BC ) and the laws of Eshnuna (about 200 years older still) have been excavated. This epoch antedates the high period of Greek civilization by roughly 1,500 years. Nevertheless it was among the Greeks that the objective discussion of man's relation to law and justice  became an activity of the educated mind and was recorded in a literature which has been part, ever since, of a more or less continuous European tradition. It is therefore with the Greeks that the history of reflective jurisprudence in the West, or European legal theory, must begin.    Page 2 Soe oaratie hronoog If we focus on the period in ancient Greece which is best illumined by historians, orators, and philosophers, say from the death of Pericles to the deaths of lexander the Great and ristotle (in rough, roundnumber dates, 2020 BC ), and look at the rest of Europe from the Greeks' point of view, we will see first of all that the omans, the other great people of European antiuity, scarcely featured on their horizon. In the time of Pericles ome was still no more than a largish town near the mouth of the modest river Tiber, its people one of the nations of the Italian peninsula speaking a dialect of the Italic family (in ome's case, that of the district called atium, i.e. atin); though ome even then had experienced the influence of Greece, partly mediated by the powerful and mysterious Etruscan civilization to its north,  partly perhaps directly through the proximity of the many Greek cities to its south (Greek colonization of the coasts of southern Italy and Sicily had begun as far back as the eighth century BC  and is attested still today by the Greekderived names of such towns as Naples, Palermo, Taranto, grigento, and Syracuse). But ome's  power at that time extended no further than its immediate hinterland, an area far smaller than even the smallest Irish county today contains; the wars with the Carthaginians which started ome on the path of imperial expansion, and the conuest of overseas provinces, still lay 100 years or more in the future. Indeed it is unlikely that many of the Greeks of 20 BC , other than those living in southern Italy, would even have heard of ome. The earliest event in oman history of which Greeks seem to have taken any notice was the sack of the city in 8 BC  by raiding Gaulish Celts; the omans themselves made no major stir in mainland Greece until 100 years later, when the Greek King Pyrrhus of Epirus, adventuring into southern Italy, was defeated by them.s for the further reaches of Europe to the west and north, they were for the Greeks of our period a more or less unknown wilderness, inhabited by what they called  barbarians ( barbaroi , the word supposed to mimic foreigners' clumsy speech). They knew in a general way about the Scythians who lived in the area of today's southern ussia; and about the Celts, a race without stable political frontiers or institutions, but whose settlements (as we know from    Page  modern archaeology) stretched at that time across central Europe from the Black Sea to Ireland. But ancient Greek geography was on the western and northern sides confined to the Mediterranean seaboard; their world more or less ended in the ocean beyond the straits of Gibraltar. The historian Herodotus, writing just before the  beginning of our period, mentions the anube, the Pyrenees, and the continental Celts, but neither Ireland nor Britain. Eratosthenes, who was librarian at lexandria a hundred years after our period, mentions Ireland (Ierne ) and Britain, presumably relying on information from merchants at the end of a trade chain, but says nothing about these islands. t the time of the Peloponnesian war (10 BC ) between thens and Sparta, which is a fully historical period for Greece, and even (though in a much more imperfect way) for ome, Ireland is shrouded in historical darkness; archaeology and philology suggest that at that epoch the migrations of Celtic  peoples to these islands had begun, but the subseuently dominant Gaelic wave of migrants to Ireland did not arrive until about 250 years later. Thus the brilliant noonday sun of classical thenian civilization coincides chronologically with the modest, rustic dawn of the oman republic, and with the fabulous small hours of the Irish night, the dark silence broken only by legendary echoes of the ir Bolg and the Tuatha  anann. The Poitica Strctre o ncient Greece uring the whole period with which we are concerned the Greeks did not live in a single Greek state. In the seventh, sixth, fifth, and fourth centuries BC  the people who spoke one or other dialect of the Greek language, and who recognized in their linguistic and cultural affinities a common Hellenic nationality, were distributed over the mainland of Greece, the islands of the egean, the coast and coastal islands of sia Minor to the east, and the coasts of Sicily and southern Italy to the west; there were a few Greek settlements also on the Mediterranean shores of rance and Spain, in ibya and Egypt, and in the Black Sea. These Greeks lived in hundreds of 'cities' (  oi ), one of which—thens—was of considerable size even by modern standards, but Which varied greatly, down to something hardly bigger than a large village of the modern world together with a small immediate hinterland. These cities were    Page  essentially independent political entities; transient relationships and regional ascendancies might subject one city to another, a subjection expressed perhaps in the obligation to supply a tribute of money or ships, or in a forced military alliance, or in the dominance in the subject city of the faction favouring the stronger one; but these conditions, even when multiple subjections to a single ascendant city made it possible to speak of an thenian 'empire', never implied the extinction of the independent personae of the other cities, which remained in theory autonomous, i.e. able to make their own laws and decide their own policies.ccordingly, when we speak of Greek literature or (still more) of Greek law, we mean something uite different from the idea in the phrase oman literature or oman law. Greek literature and poetry exhibit a strong dialectal variety, whereas the omans made their own Italic dialect, atin, the standard for the Italian  peninsula and for much of the Mediterranean world which they ruled. Similarly, while oman law means the law which was elaborated within a more or less unitary masterstate, 'Greek law' is a much looser expression, meaning the various codes or rules srcinating in a large number of independent political units inhabited by  people of Hellenic language and culture. Certain features of broad family resemblance between the legal institutions of different cities can be seen, but in the classical era a unified Greek legal system never existed because no unified Greek state existed.In any treatment of Greek civilization, including Greek law, there is a tendency for thens to bulk very large, and often to seem synonymous with Greece itself. This is  because, of the hundreds of Greek citystates, thens was by far the greatest, in population, in power and influence, in wealth, in art and literature, until her defeat in the long Peloponnesian war with Sparta inaugurated a rapid decline. Even this decline is, in the area important for our subject, not obvious; for it is to the century which follows the Peloponnesian war that the great names of thenian rhetoric belong, the orators emosthenes, ysias, Isocrates, Isaeus, as well as two of the great figures of thenian philosophy, Plato and ristotle; Plato's teacher, Socrates, was put to death soon after the end of the war. The infancy of Greek philosophy had  been mostly led in the cities of Ionia (as the Greeks called the western coastal fringe of sia Minor, modern Turkey); but its maturity, expressed in those names, is essentially thenian; as, too, is the fifthcentury maturity of Greek tragedy
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