Ancient Greek law in its influence on the further legal development of Europe in no way can be compared with the law of another major representative of the ancient world, Rome . Not theoretically developed by Greek lawyers, which, owing to the fragmentation of Greece, did not receive the value of a single Greek law, it did not result in a coherent system of norms suitable for reception in other countries. This explains the incomparably smaller share of attention that has fallen to his share from Western lawyers. Legislation played an extremely small role in the creation of Greek law. Sparta had no written laws at all, and though Athens had them, but, compiled in a very remote time, they did not reach us in the original. The advanced Greek law of the time of the speakers was never codified in any complete form. Greece did not leave us any records of the law in the writings of its lawyers, whom (in our or Roman sense) she did not know at all.
Therefore, our information about ancient Greek law is drawn only from:
- fragmentary news about him from various Greek writers - news is far from equal price and authenticity,
- extant inscriptions.
Among the first, the most important are the writings of the speakers and, in particular, the legal speeches of Demosthenes between them, telling a number of facts about the modern state of ancient Greek law and its history, Isei , who gives valuable information mainly about the inheritance law, Lysias , Isocrates and Eshin . Plato , Aristotle , Theophrastus , in their writings, provide a whole mass of information about the positive law of Greece, which undoubtedly radically affected their philosophical ideas about the laws. The philosophers and moralists are followed by poets ( Homer , Hesiod , Euripides , Aristophanes ), historians ( Herodot , Thucydides , Xenophon , Polybius ) and lexicographers , who, however, generally have less information about the law than one might expect. The main drawback of this information is that all of them, with few exceptions, are not an exact transfer of legal norms, but their subjective retelling. As for the inscriptions, the material contained in them is richer and devoid of the deficiency indicated now. Their collection enlivened the study of Greek law, and new discoveries, such as, for example, the Gortinsky laws (see Vol. IX, 340), reveal before us unknown pages of Greek legal life. Most of the inscriptions, however, are private records of various legal transactions, far from embracing the entire system of Greek law.
Legal norms and sources of law
The general moral and religious principles were formulated by the Greeks in the form of the Chiron Commandments (to honor gods, parents, respect the guest). Divine justice in the philosophical period was reinterpreted as order, harmony of things. Humanistic principles are formed and contrasted with chaos.
Unwritten legal practices were a source of law in all policies of ancient Greece (a vivid example of the unwritten laws of Lycurgus in Sparta). Religion was derived from the legal source of legal practices (according to legend, the Great Retra was given to Lycurgus by the oracle of Apollo ).
Despite the indifferent attitude to the systematization of legal norms, the writing of laws ( codification ) was carried out for political purposes: you can stop the confusion in the policy by writing laws, a good set of laws of the neighboring policy can be made its political program, weak policies should be imposed on the law. A striking example: the draconian laws in Athens were drafted as a tool for getting out of distemper. Legislation codification Landing (in southern Italy) and Charon (Sicily) is associated with the victory of the demos.
Most fully written customs were enshrined in the legal norms of the Athenian democracy.
As a result of Salon’s reforms in Athens, legal principles are formulated:
- the principle of the priority of the law (over the priority of the authority of the interpreter);
- the right to a public action;
- the right to appeal decisions of the executive branch ( archons ), courts of phil and tribal courts, in the people's court ( helium ).
In the speeches that have come down to us, the use of proclaiming the principles of law is used:
- isonomy (equality before the law),
- andserii (equal right to speak),
- andangelia (rights to defend democracy)
In Athens, however, it was realized that the law must be fixed in writing.
The legal rules in Athens were expressed in two main forms:
- Nomos - the decision of the national assembly, which became the state law.
- Psefizm - court decisions that relate to any individuals.
The contradiction between Nomos and Psefism becomes an important philosophical and political problem: which is more important than the sovereignty of the national assembly or the rule of law? The development of law in Athens led to the understanding that this contradiction can be removed by drafting "nominal laws" (special legislation for a group of individuals identified by psephism).
In the speeches that have come down to us, speakers also indicate such forms and sources of law as:
- political agreements between parties within the policy and allied agreements between policies;
- international trade agreements;
- oaths (especially the oath of entry into office).
Speakers in court speeches also appeal to known precedents. [one]
Right Features
The practical meaning of the Greeks, lively trade relations, developed industry contributed to the formation of legal norms in Greece, different from the Roman type and in many respects more progressive. Among the most striking differences between ancient Greek and Roman rights:
- softer forms of paternal authority, which took on the nature of protection and patronage rather than the real authority;
- recognition of sons as full children with adulthood;
- largely independent property status of the wife;
- much greater proximity of communal forms of land tenure (stated with sufficient conviction in Homer's poems) to the historical period of Greek history;
- undoubted and strong impact of the social principle on the organization of private property, in relation to real estate, sometimes reaching the prohibition of the sale of hereditary plots of land divided between families of indigenous citizens;
- much more free forms of obligation relations than in Rome, which were mainly expressed in a free (informal) contract;
- the absence or, at least, a significant limitation of the testamentary right and, finally, a number of specific legal entities unknown to Rome, only later some of which are recipient (for example, the mortgage system) - these are the main material differences of Greek law from Roman law, usually emphasized by researchers .
Along with them, there are a number of formal differences (similar, like many of the above, to German law):
- the lack of a strict legal distinction between property and ownership;
- free transfer as a title to the acquisition of property and next to it a number of public guarantees of property rights, achieved by recording transactions on marble pillars.
The value of these features should not be exaggerated, along with differences there are historical analogies of Greek and Roman law. These include the permanent care of women and the enormous development of individualism in the sphere of property relations of individuals. Therefore, the scientific interest in the study of ancient Greek law consists not in stating its national foundations, but in indicating that another combination of constituent elements of legal formation was possible in the ancient world, and Roman law cannot even be considered a typical representative of the civil law system in antiquity.
Sources
- ↑ I.E. Surikov. Problems of the early Athenian legislation .. - 2004.
Literature
- Nechaev V. M. Ancient Greek Law // Encyclopedic Dictionary of Brockhaus and Efron : 86 t. (82 t. And 4 extra.). - SPb. , 1890-1907.