13 January 2007

Greek Law and Natural Law

These paragraphs from Joseph Almeida's review today in BMCR of the Cambridge Companion to Ancient Greek Law seem relevant to our discussion of the origin of the concept of natural law.

If Almeida is correct, Ober thinks the concept could not have originated from within 'the Greek mind' at all (can that be correct?); whereas Long apparently gives a sociological account of how the idea might have occurred to a philosopher.

Ober in "Law and Political Theory" (located in Part 5) applies to the
literature a framework of contemporary legal and political theories in
order to highlight interplay between theory and practice in the Greek
law. Thus the Greek mind had no notion of natural law or objective
morality. Rather it shows a deontological and politicizing positivism
subject to the influence of institutional form in the shaping of
polis-specific laws. Under the groupings, "legislation and amendment,"
"application and interpretation," and "enforcement and penology," Ober
sweeps with general observations over Greek writers from Hesiod to
Demosthenes. Hesiod had a theory of justice, but no institutional means
of implementation; Solon applied judicial theory through legislative
institutions; Thucydides theorized about international justice but
faced gaps in international legal structure similar to Hesiod's local
deficiencies; Plato and Aristotle theorized about law disengaged from
practical application, but theorizing and practice met in Demosthenes.
While Ober's broad treatment may provoke objections on particulars, his
"interdisciplinary approach ... informed by contemporary ... theory"
exemplifies the kind of innovation which Cohen believes will "open
fruitful avenues for future exploration." (p. 24).

Philosophizing also is A. A. Long's "Law and Nature in Greek Thought"
(located in Part 5). One of the most interesting pieces, it would have
been well placed in a book on Greek philosophy. Long examines the
relationship in Greek intellectual history between nomos and physis
from strong antithesis in fifth-century theorists to conjunction in the
"natural law" of the Greek Stoics. In the fifth century the notion of
nomoi was too vividly connected with particular legislation to become a
metaphor for the universal divine order. For this, Greek thinkers
employed the idea of dike. However, the transformation of world view in
Hellenistic society from polis parochialism to cosmopolitanism
citizenship freed nomos from such limiting associations. Thus the
Stoics joined ethics to cosmology wherein "natural law" became a
manifestation of a larger and encompassing rational order of the "laws
of nature." For Cohen, Long's article represents the potential fruits
of an interdisciplinary application of philosophic inquiry to the study
of Greek law.