Table Of ContentCopyright by
Martin Ostwald
195?
THE UNWRITTEN LAWS
AND
THE ANCESTRAL CONSTITUTION
OF ANCIENT ATHENS
by
Martin Ostwald
Submitted in partial fulfillment of the requirements
For the degree of Doctor of Philosophy,
in the Faculty of Philosophy,
Columbia University.
CONTENTS
Introduction 1
I. The Revision of the Laws from 411
to 403 B.C. and its Problems 30
II. Draco, Solon, and the
Ancestral Constitution 55
III. Tribes, Trittyes, and Naukraries 72
TV. The Census Classes 90
V. The Rights of the People 95
a. The Assembly and the Election
of the Magistrates 95
b. The Popular Lawcourt 106
VI. The Council and its Functions 110
VII. Safeguards for the Protection of
the Ancestral Constitution 130
a. Oaths 130
b. Solon's Law on Faction 146
c. The Laws against Tyranny 150
d. The Legislative Process 173
e. The Ypacpl) itapavop^ov 180
VIII. Conclusion 189
INTRODUCTION
An attempt to treat a subject which has been handled
in as masterly and in many ways as definitive a fashion as
have the unwritten laws in Rudolf Hirzel’s great work"*" would
seem, at first glance, to be an ambitious, if not a foolhardy
enterprise. Yet a fresh approach to the subject is not only
justified, but even desirable. The reason for this is not
merely the fact that, with the exception of one monograph by
2
the Italian scholar Francesco Flumene, no comprehensive
treatment of the subject has appeared since 1903, but rather
that much can and must be added to Hirzel’s findings. Thus,
the following pages aim at supplementing and clarifying rather
than superseding the work that has already been done on the
unwritten laws.
The questions which Hirzel raised are two. The first
of these inquires into the nature and significance of the con
cept of the unwritten law as opposed to the written law among
the Athenians and examines the history of the conflict between
these two kinds of law. The second question is an investiga
tion into the origins and sanctions of the unwritten law.
In his answer to the first question, Hirzel demonstrated
1. Rudolf Hirzel, n,'Ay(<yos No^oj n in Abhandlungen der philo-
logisch-historischen Classe der kgl. sâchsischen Gesell
schaft der Wissenschaften. (Leipzig; 19o3). Hr. 1.
2. Francesco Flumene, La legge “non scritta" nella storia e
nella dottrina eticô^giuridica dellajSrecia classica
(Sassari: Stamper!a della L.I.S., 192$).
2
the existence of two concepts of "unwritten law” among the
Greeks. The Greeks, according to Hirzel,thought of the un
written law not only as a general body of "natural” precepts
which are common to all men, but also as a group of regula
tions which, in addition to the written laws, governs the life
of a particular community. But, although the existence of
this distinction in Greek thought cannot be denied, Hirzel*s
choice of a number of passages from Aristotle*s Rhetoric as
his point of departure is unfortunate.3 The Rhetoric is a
practical handbook, written for the student of oratory, and
does, therefore, not lend itself very readily to the kind of
philosophical and systematic treatment of the &YPtt9°l v6p,ot
at which Hirzel aims. The distinction drawn in the Rhetoric
between the «ypecpoe v<$p.oç which is general and exists by uni
versal agreement2*" and the %yp@(pog vopog as a subdivision of
the particular laws of the stateis demanded by the practical
nature of the different subjects with which Aristotle has to
deal within the framework of this treatise; it is not a theo
retical and systematic distinction and the cleavage between
the two in content is not as incisive as Hirzel thinks it is.
The first discussion of the «yp«<poç v£p.oc in the
Rhetoric occurs in the section on accusation and defense, in
which Aristotle defines wrongdoing «btxecv ) as "the volun- * 4 5
3» See R. Hirzel, op. pit., pp. 1-11.
4. Aristotle, Rhetoric. I, 10, p. 1368 b 7-9 and 15, p. 1375
a 27 - 1375*TT7H
5. Ibid.. 13, p. 1373 b 4-6 and 1374 a 20-26.
3
tary infliction of an injury contrary to the law.But, since
obviously not all kinds of wrongdoing are subject to legal pro
ceedings in the technical sense, the law as such is divided in
to the particular written law of an individual state and the
7
general unwritten law which exists by universal agreement.
The distinction between the general and the particular
law as such is maintained in a second passage, in which unjust
and just actions (ebixifp-e're xel b ix< u£p.«T< ) are classified in
g
relation to these two types of law. But there is a difference.
For while the general law is identified with "natural” law, it
is not specifically designated as unwritten, even though the
subsequent discussion makes it clear that Aristotle still
thinks of it as unwritten. Instead, the law of a particular
state is now subdivided into the written and the unwritten law.
That a differentiation between the unwritten laws of a particu
lar state and the general law of nature common to all men had
to be introduced into a classification of particular just and
unjust actions becomes clear if we consider that there are in
every community certain unwritten rules of conduct and tradi
tions which are peculiar to the particular society and which,
contrary to the unwritten laws common to all men, are subject
6. Ibid., 10, p. 1368 b 6: edTto b% T& eôtxetv T& pXeEitTetv
exovTe xepl tIv v&iov.
7» Ibid.. p. 1368 b 7-9: Y&JLOG b’êdTÏv .0 p.lv tbioç o bl xoivOG*
X^yo^bl *biov u.lv^xeÔ.ç'V yeYpgjjqiévov icoXiTetîovTe 1, xoivlv bl
ode eypacpe itepa itïd iv oBoXoŸeîdOat boxeï.
8. Ibid.. 13, p. 1373 b l-o: Ta b ebixq^aTa it^vTa xal Ta bixai-
cop,®T< bi^Xcopev ap^^pevo 1 xptoTov êvTevôev. œptdT^i bl) T& bf-
xete xaï T& abixa itp<5çyTe v<$|iovç btfo xaï xppg ovç 6dTt btx<5ç.
bl y<5p-0V T&V p.ev TblOV T&V bl XO LVOV, Tb tov plv tIv
ex«tnoi£ cop idpévov itpbç avTotfg, xal tovtov T&v plv aypa^ov tIv
bl y6e Y*P *® P'P'8vov, xoivlv bl tIv xaT& <pi$dtv.
4
to change over a period of years.
Later in the same chapter of the Rhetoric, Aristotle,
still speaking about just and unjust actions, mentions two kinds
of sypacpa : "The first is measured by an excess of virtue and
vice which results in praise or blame, dishonour or honour and
rewards, e. g. showing gratitude to a benefactor, returning a
good deed, helping one's friends, etc.; the second fills de
ficiencies in the particular written law.The examples ad
duced to describe the first kind show that Aristotle is here
thinking of the unwritten laws common to all men, although, as
we shall see later, these may have their application within an
individual state.The second type, which remedies the short
comings of the particular written law, is in the sequel identi
fied with t& éitieixéç , the equitable. The éxieixéç fills the
9. See, for example, Plato*s complaint in his Seventh Letter,
325 d-e, about the restored democracy: ... ou y&P eti év Toîç
Ttov itŒT^pcûv rjGediv xal iTqbeupad lv î) itoXiç t)|1ûov#5 KpxeÏTo, ...
tcî te tü5v v^icov Yp£p,p,aTa xal eGq bieœ6e(peTo xal éiteôtbov
GaupadT&v odov; cf. also Aristotle, Politics,
III, 16. p. 1287 b 6-8: ETi xvoicoTegot xal itep^ xup uoTépœv
t5v xaT« YpappeTg v<5pa>v 01 xaTa t& eGq eldtv* coots
Ttov xaT& yp4p,p.aTa avGpantog adçpaXédTepoç, àXX ou
TûÿxaT& to eGog; and Ibid., Vi. 3, p. 1319 b 33- 1320 a 4,
and Nicomachean Ethics. X, 9, p. 1180 a 32 - b 2, where
Aristotle prescribes the enactment of particular unwritten
laws as well of the written law as the task of the lawgiver.
10. Aristotle, Rhetoric, I, 13, p. 1374 a 21-25:,T*ÛTa î/êdTlv T&
p&v xaG'vitepPoX^v apeTrjç xal xaxCaç, eç*oig ovetbr] xal Eitai-
voi xal aTiutai xal Tipal xal ôcopeai, oiov t6 xapiv exeiv t$
Ttoi^davTi eu xal avTeuxoieJv t2>v e5 xo i^davTa xal gonGqTixbv
etvai toîç <p(Xoi£ xal odfc aXXa ToiauTa, T& bfc tou ibiou vopou
xal YGYPCP-P-Gvou eXXetpa.
11. Against R. Hirzel, op. cit.. 3-4, 6-7, and 32.
12. Aristotle, Rhetoric, I, 13, p. 1374 a 26 -b 23.
5
gap where the legislator could or would not give a precise def
inition of the crime; it considers the intent and circumstances
of an action rather than the act in itself and thus makes for
leniency; it looks beyond the letter of the law to the intention
of the lawgiver; and it prefers arbitration to a lawsuit. The
humane and lenient nature of the licie ix£ç as defined here makes
it clear that it is based upon a feeling common to all civilized
men. If Aristotle defines it as a particular unwritten law, he
does so because this kind of ènisixéç comes under consideration
only as opposed to a particular written law and because the
equitable differs with different cases that are tried before a
court and in relation to the different laws on which trials may
be based.
The fourth and last treatment of the unwritten laws in
the Rhetoric occurs in the section in which the use of laws as
one of the "unscientific proofs” in a lawcourt ( aTeyvoi nCdTS lç)
is discussed. "It is obvious," writes Aristotle, "that if the
written law is opposed to our case, we have to use the general
law and fairer and juster standards ; we have to say that a de
cision ’to the best of one’s judgment’ means not to apply the
written law rigidly; that equity ( t& ème ixéç ) is constant and
unchangeable as is the general law — for it is based on nature
— while the written laws change frequently." H On the face * o
13 • Ibid.. tl5, p. 1375 a 27-33 : tpevsp&v yàp oti, eàv p&v ivav-
jioe y o YSYpap-P-Evoç t$ itpayp.a'ci, tod xolv$ xPTldT^ov xfX toïç
suisixedTSpoiç xaX &ixaioT^poic, xal^oTi T& yvcop-rj 'ey aptdTy
toot edTtv T& ph itavTeXcoç xphd®®1 'cote Yeypappévote. xaT
oTi T& ptv l-Rieixbc âsX pévsi xaX ovbshots psTap^XXs i, ovd*
o xoiv<$g (xaT& q>i$div y^P êdTiv) oi bè YeYPaPP^'V0rcoXXdxig.
of it, there can be no question but that this account of the
Sitieix^g conflicts with the preceding one: in the earlier
treatment "equity" was changeable, here it is constant and un
changeable; while formerly it was grouped with the particular
law of a state, it is now mentioned in the same breath with
the general law of nature. This last point shows the way to
ward a solution of the conflict. The definitions of the
ETtieuxéç differ because the context is different in the two
cases. In the earlier instance, just and unjust actions are
discussed in relation to particular laws of a state: since a
given written law cannot cover in detail all the aspects and
circumstances of the crime with which it deals, the eitieixéç
which, in this case, naturally varies from one case to the
next has to be applied as a corrective against too rigid an
interpretation of the particular written law. The last pas
sage, on the other hand, deals with a case in which an appeal
to the general unwritten laws of nature is to override the
authority of the whole body of the written law, because the
latter favours the opposing side. Thus, the difference be
tween the two treatments of the èitietxég is naturally explain
ed by the context in which each is mentioned. It springs from
the nature of the subject of rhetoric which Aristotle is dis
cussing and which compels him to deal with a variety of spe
cific points rather than with general theoretical concepts.
In order to find a philosophical treatment of the eitieixéç ,
we have to turn to the fifth book of the Ethics, for the dis
7
tinctions found in the Rhetoric are not differences in the
content of the êitie txéç but only in the ways in which it can
be applied in practice under different circumstances.
The close relation of the two kinds of èitieixég with
particular and the general unwritten laws respectively shows
that the general unwritten law of nature which may occasionally
supersede the written laws of the state does not differ very
much in content from the particular unwritten law which fills
the gaps and deficiencies in the particular written law. There
fore, the results which Hirzel elicited from his analysis of
the Rhetoric have not gone very far in uncovering any fundamental
distinctions that exist between different types of aypatpo i v<$p.oi.
Nor does Hirzel*s investigation into the nature, origin,
and sanction of the unwritten law of particular states present
an exhaustive treatment of the subject. Hirzel again takes his
cue from Aristotle.^ In both the Ethics and the Politics,
Aristotle speaks of particular unwritten laws which, together
with the written law, are to be established by the lawgiver.
What exactly are these laws and what do they stipulate? Hirzel
cites a further passage from Aristotle^ that the particular un-
14. For the following, see R. Hirzel, op. cit.. pp. 13-14»
15. Aristotle, Nicomachean Ethics, X, 9, p. 1180 a 32 - b 2;
Politics. VI, 3, p. 1319 b 33 - 1320 a 4.
16. Aristotle, Politics. Ill, 16, p. 1287 b 5-8, as cited
by R. Hir&el.ôp/ tit., p. 14, n. 3
