GAGARIN, MICHAEL, The First Law of the Gortyn Code , Greek, Roman and Byzantine Studies, 29:4 (1988:Winter) p.335 The First Law of the Gortyn Code Michael Gagarin T HE FIRST COLUMN of the great inscription of laws at Gortyn (I. Cret. IV 72) begins with a prohibition against pre-trial sei­ zure. For nearly a century after this magnificent inscription was discovered in 1884, the first sentence, os /C' fAEV8fPOL i SifAOL p,hAEL aV1TLp,oAEV 1TPO S[/Cas p,l ll)'Ev (1.2f), was unanimously understood to mean "whoever is going to contend (in court) about a free man or a slave is not to seize (him) before trial." I The succeeding provisions (as traditionally understood) elaborate the law concerning seizure of per­ sons: fines are set for violations (1.3-12), rules are given governing specific points of dispute and the roles of the witnesses and the judge are specified in each case (1.12-39), provision is made for a disputed slave's taking refuge in a temple (1.39-49), and three additional con­ tingencies are provided for (1.49-2.2). 2 Together these provisions establish clear and reasonable rules, which were intended to replace an earlier system of self-help in which the disputed person was for­ cibly seized by the stronger party. This interpretation of the first sentence and (with some disagree­ ment over details) the first column stood unchallenged until the recent presentation by Haiim B. Rosen of a "linguistic analysis," which amounts in fact to a radical reinterpretation of the provisions of this entire section. Most significantly Rosen argues that in the first sen­ tence the datives iAEV(UpOL and a ciA OL designate not the object of contention ("contend about x") but rather the other party to the suit ("contend against x"). He thus translates, "quiconque va aller a un I I give the text as printed by M. Guarducci, I.Cret. Other editions (cited hereafter by author's name): F. Bucheler and E. Zitelmann, Das Recht von Gortyn (RhM Erganzh. 40 [Frankfurt 1885]); D. Comparetti, MonAnt 3 (1893) 93-242; R. Dareste, B. Haussoullier, Th. Reinach, Rec. inscr. jurid. gr. I 352-493; J. Kohler and E. Ziebarth, Das Stadtrecht von Gortyn (Gottingen 1912); F. Blass, SGDI III 4991; R. F. Willetts, The Law Code of Gortyn (Kadmos Suppl. 1 [Berlin] 1967]). Like Guarducci and Willetts I begin numbering the law with line 2 (etot forms line 1); Rosen (n.3 infra) begins his numbering with line 1 and his numbers for the first column thus differ by one. For the traditional interpretation I give Willetts' translation with minor modifications. Despite certain reservations (cJ n.2 infra: 129) I use the traditional appellation of this inscription, the 'Great Code'. 2 See my "The Organization of the Gortyn Law Code," GRBS 23 (1982) 129-46, esp. 138-40. 335 GAGARIN, MICHAEL, The First Law of the Gortyn Code , Greek, Roman and Byzantine Studies, 29:4 (1988:Winter) p.335 336 THE FIRST LAW OF THE GORTYN CODE proces contra un homme libre ou un esclave, ne doit pas enlever avant Ie proces."3 This interpretation of the first sentence leads Rosen to understand it and the rest of this section as prohibiting the seizure of any animate being, human or animal, in the course of any dispute. The implications of Rosen's interpretation have been elaborated by Henri van Effenterre, who despite reservations about some of Rosen's arguments accepts his view of the first sentence and concludes that lines 2-18 (at least) contain general procedural rules. 4 Objections to this interpretation have been raised, partly on linguistic grounds but primarily on legal grounds, by Alberto Maffi, who alleges parallels between these provisions and Roman and Athenian law and con­ cludes that the Gortynian law has a somewhat narrower application than traditionally assumed; it allows only a process of a4>a[p€cns to prevent the abduction (a')'w')'~) of either a free man or someone's slave.5 Most recently, in a review of Maffi, van Effenterre has rejected this conclusion and reaffirmed the basic elements of Rosen's argu­ ment.6 Now, it is certainly healthy to have century-old views challenged, and Rosen's paper has done a service in forcing a reconsideration of the traditional understanding of this law. Legal scholars certainly must not ignore linguistic considerations and must be especially care­ ful when treating inscriptional evidence in unfamiliar dialects. In particular, we must bear in mind the potential ambiguities in the transcription of the Cretan dialect. The potential for ambiguity should not, however, lead us to manipulate the meaning of the law at will, nor can linguists interpret a legal text without regard to legal considerations. I shall argue that both legal and linguistic considera­ tions support the traditional understanding of the first sentence and in general of the whole first column. In what follows I shall focus on the first sentence, which (as Rosen realizes) is the key to interpretation of the whole section, and I shall not attempt to deal with many of the legal and linguistic problems of the rest of the column. I should add that all three scholars whose work I shall be discussing have made 3 "Questions d'interpretation de textes juridiques grecs de la plus ancienne epoque," Symposion 1977 (=Akten der Gesellsch. f. gr. u. hellenist. Rechtsgesch. 3 [Cologne 1982]) 9-32, esp. 9-18 (translation p.ll). 4"Le droit et la langue Ii propos du code de Gortyne," Symposion 1979 (=Akten der Gesellsch. f. gr. u. hellenist. Rechtsgesch. 4 [Cologne 1983]) 115-25. It is mis­ leading to assert, as van Effenterre does, that the traditional view understands this law "as a kind of prefiguration of habeas corpus" and the first step on the road to the Helsinki accords, since the law clearly restricts seizure only of one individual by another and is limited to cases of disputed ownership. S Studi di epigrafia giuridica greca (Milan 1983) 3-117. 6 "Problemes d'epigraphiejuridique grecque," RHD 62 (1984) 47-52. GAGARIN, MICHAEL, The First Law of the Gortyn Code , Greek, Roman and Byzantine Studies, 29:4 (1988:Winter) p.335 MICHAEL GAGARIN 337 points with which I agree, although I shall naturally concentrate here on points of disagreement. The foundation of Rosen's case is his interpretation of the infinitive aV7TLfJ-oAEV. The first problem is phonological. The prefix is undis­ putably a variant of Attic afJ-LfJ-OAEV "corresponds exactly" to the Attic verb afJ-

(trYELv and OLW­ KELV. ll Thus it would not be surprising if a verb equivalent to fJ.o.X(U8aL became the primary verb designating a legal struggle in Cretan. It would be much more difficult to explain the use of a verb equivalent to f3alvw, as Rosen would have it. afJ.Lu/3TJTliv might, to be sure, provide a parallel for the compound verb aV7J'Lp.oAiv,12 but this does not explain the common use of the simple verb P.OA£V for contesting a legal case. Nor would it provide as good a parallel for other com­ pounds of p.OA- in Cretan, such as ap.oA(l, which probably means 'without a trial' (I.eret. IV 75.D.4f). Thus a connection with Homeric p.WAOS and with the language of combat is clearly preferable on seman­ tic grounds. Whichever derivation we accept, neither provides a certain guide to the syntax of aV7J'Lp.oAiv. This is so in part because afJ.l in the sense of 'about/concerning' has a relatively flexible construction in Greek. In Homer ap.l, when used with fJ.aX(U8aL in the sense 'fight for, fight over', is followed by the genitive (e.g. 7J'loaleos afJ.' oAlYTJs, II. 16.825), or (more often) by the dative (afJ. , • EAEVrJ lea, leT~fJ.aUL 7J'aUL, 3.70, 3.91)13 or the accusative (ap.' 7J'bALV, 9.530)}· In many of these in­ stances it is likely that some of the original locative sense remains. The same uses are found when the verb and preposition are written together (afJ.LfJ.o.x(u8aL) rather than separately. Thus, if there is a connection between fJ.0Aiv and p.o.XEu8aL, we may find that the syntax of aV7J'Lp.oA£v (and p.OA£v ... aV7J'l) is also variable. Certainly we could not assume, as Rosen apparently does, a simple identity of syntax between aV7J'Lp.oA£V and ap.Lu/3TJTliv, even if the verbs were semanti­ cally equivalent. If we truly wish to ascertain the syntax of aV7J'Lp.oA£v, moreover, our starting point should be not a hypothetical (or even a fairly certain) 11 See e.g. Frisk and Chantraine (supra n.9). The military associations of p.lSAiv are more fully noted by Hans Trtimpy, Kriegerische FachausdrUcke im griechischen Epos (Basel 1950) 160-62, and C. J. Ruijgh, L'eiement acheen dan la langue epique (Assen 1957) 95f. Rosen mentions P.WAO~ only in passing (13 n.7), without comment. 12 Van Effenterre (supra n.6: 48) is right to note Maffi.'s erroneous analysis of ap.­ 'u flqu'iv. 13 This expression is often cited in connection with aV'7l"p.lSAiv, since the struggle over Helen is in some ways quite similar to a legal contest over the ownership of a person. 14 In this and other instances, ap.{ is ambiguous between a locative ('around') and objective ('for the sake of') sense. Probably both are intended. GAGARIN, MICHAEL, The First Law of the Gortyn Code , Greek, Roman and Byzantine Studies, 29:4 (1988:Winter) p.335 MICHAEL GAGARIN 339 etymology, but a survey of the use of the word in Cretan legal inscrip­ tions. The simple verb P.OAEV is found from the earliest period at Gortyn (/. Cret. IV 1.1.a-b) and clearly means 'to contend in a law suit', or 'to plead a legal case'. It is common in the Great Code,ts where we also find other compounds of the verb, whose sense is fairly evident: t7TtP.OA.EV ("proceed against in court," 9.28f, 31£), tJ.7TOP.OAEV ("assert as part of one's legal case," followed by indirect statement, 6.26=9.18f), and aVTlp.oA.o~ ("an opposing litigant," 6.25f=9.18)}6 The compound aV7TLp.oAEV occurs (in addition to 1.2f) in 6.27 and 9.19fand the noun ap.7Tlp.oAO~ in 10.27f.I1 The simple verb is most often used, both in the Great Code (1.53, 6.29, 7.43, 9.23) and elsewhere (e.g. I.Cret. IV 41.vI, three times), absolutely in the sense of 'bring the case to trial'. In 1.15 it is followed by an accusative in an elliptical indirect discourse: P.OAEL ... f.A£v()£pov, 'contends (that he is) free'; this is similar to the construction of a7To­ P.OA.Ev (see above). And the passive participle is used with UK." of 'the case being tried' and with the neuter plural article to mean 'the pleadings' ('the things being pleaded')}S None of these instances provides much help when we come to the one use of the simple verb with aV7TL (1.18) or the three uses of aV7TLp.oAEV. To begin with the simple verb, at 1.18-20 we find: al 'M K' aV7T1. aifAOL I I \ I " All . d' . P.OAtOVTL 7TOVLOVT£~ fOV f£KaT£po~ EP.EV. • • • prevIOUS e Itors mterpet aOAOt here as a dative with aV7Tl, and the sentence is usually under­ stood to mean "and if they contend about a slave, each declaring that he is his .... " Rosen, however, takes aOAOL as nominative plural and aV7TL as an adverb meaning 'on both sides'; he translates (1If, cf 14), "Mais si de part et d'autre des esclaves vont en justice, disant, chacun d'eux, que sa (parole) est (= est valide) .... " Leaving aside for the moment the legal objections, we should note first that adverbial aV7TL, like other 'prepositions' used as adverbs, is common in epic but occurs rarely if at all elsewhere. One would certainly not expect it in a prosaic text like a law. We should also note that aV7Tl would appear to be superfluous, since the sentence would convey the same sense with­ out it (especially with the following fEKaUPOS), and that the interpre­ tation of fOV ... (P.£v to mean "sa parole est valide" goes considerably IS See 1.15, 1.18, 1.49f (jJ.rsAtOP.tvas Taa aL/Cas, "while the case is being tried"), 1.53, 6.29, 7.43, 9.23, 1O.21f (as at I. 49f), and three occurrences of Ta P.OAtop.Eva, "the things that are pleaded" (5.44, 6.54f, 11.30f). 16 Cf aVT )tp.oAlaL in 1. Cret. IV 13.h.l and aVTl]P.OAOS (?) in 13.a.1. 17 Cf aV1TLp.oAOS in I.Cret. IV 57.9 (the sole preserved word in the line). 18 For references see supra n.15. GAGARIN, MICHAEL, The First Law of the Gortyn Code , Greek, Roman and Byzantine Studies, 29:4 (1988:Winter) p.335 340 THE FIRST LAW OF THE GORTYN CODE beyond the sense of the Greek,19 and if true would give us a useless specification: every litigant presumably asserts that his plea is valid. Laws do not bother to add qualifications that would be true in every case. Rosen's interpretation must, therefore, be rejected, and we may conclude that p.OAEV is here used with aV'1Tl and the dative to mean 'contend about something'. It is entirely consistent with this conclu­ sion that we find ap.'1Tlp.oAOS at 10.27f in the sense of the 'object of a legal dispute'. 20 If the simple verb can thus be used with aV'1Tl and the dative to designate 'bring a suit concerning', we may reasonably expect that the compound verb aV'1TLp.oAEV might also be found with a dative in the same sense, and this expectation is satisfied in the opening sentence, if we accept the traditional interpretation. First, however, let us con­ sider the other two occurrences: 6.27 and 9.19f. The wording of the two passages is almost identical and I shall therefore examine only the first (6.25-29):21 al aE K' 0 aVTlp.oAOS a'1Top.oAEL av'1Tl. TO KPEOS 0, K' , , I" ~ I"'~ , ~ Fll' h aV'1TLp.oALOVTL p.l lp.lv Tas p.aTpos l Tas ),vvaLKOS, P.OAEV. . •• 0 owmg t e traditional view Willetts translates, "if, however, the defendant should maintain, with reference to the matter about which they con­ tend, that it is not in the power of the mother or the wife, the action shall be brought. . . ." Rosen, on the other hand, takes 0' as the nominative plural of the relative pronoun and the clause OL K' aV'1TL­ p.oALOVTL as the subject of the infinitive p.oAiv. Presumably he under­ stands this to mean something like "if the litigant makes a declaration concerning the matter, those who are contesting the case, (claiming) that it is not in the power of the mother or wife, shall bring the case .... " This interpretation would apparently have the law provide for cases in which on one side a litigant merely declares something (unspeci­ fied), whereas on the other side litigants (plural!), who do make a spe- 19 Rosen maintains (14) that (P.fV repeats the same verb in 1.16, and that /CapTovavr, which is used in the earlier instance, is thus meant to be understood in 1.19f. This is unlikely, and one would want a reflexive (cf Flv aVTo, at 2.40) to convey the sense of "his own (plea)." Even then the ellipsis would be extreme. 20 Van Effenterre (supra n.4: 121) also rejects Rosen 's interpre~tion of 1.18-20 in favor of the traditional view. He notes that in this case "the local sense of the preposition is respected." 21 9.18-20 reads ai ~' 0 a.vTlp.liAor a.lI'OP.[liA]lo, a.[vll']' TO /Cp'or 3, /c' a.VlI"P.liAlliVT& p.l Tar lI'aTpo,o/cO f[p.]fv .... In his brief remarks on this passage Rosen (13 n.6) proposes two new supplements: a.[VT]' at 9.19, where the traditional a.[VlI']' is supported by the corresponding passage at 6.26; and [p.oA]iv in place of the traditional [(p.]ElI (or ([p.]fv-a bare trace of the beginning of E is perhaps visible in Willetts' photographs) at 9.20, where the gap has just enough room for EM but certainly not for MOh. I see no warrant for either of Rosen's supplements. GAGARIN, MICHAEL, The First Law of the Gortyn Code , Greek, Roman and Byzantine Studies, 29:4 (1988:Winter) p.335 MICHAEL GAGARIN 341 cific plea, are to bring the case. This is impossible. On this view the initial conditional clause would be meaningless (since every litigant declares something), the shift from a singular noun designating one litigant to a plural relative clause designating the other would be confusing at best and would violate the standard use of the plural to designate the two litigants, and the second lCa would be unexplained (one cannot have a general relative clause describing litigants on one side after the designation of the litigant on the other side by a specific noun). I can thus see no reason whatever to accept Rosen's interpreta­ tion of 6.25-29 and 9.19f and every reason to adhere to the tradi­ tional view that in both passages Ot is to be construed with aV1Tt­ p.oA/.ovn as a dative (~L) indicating the object ofthe dispute. Let us now return to the opening sentence of the law. We have concluded that Rosen's "linguistic analysis" is based on the invalid claim that Attic ap.qmTj31JTf'iv is the "syntactical model" for aV1TtJJ.0AEV, and it is supported only by impossible interpretations of 1.18-20, 6.25-29, and 9.18-20. Since the traditional interpretations of these passages seem valid, we have no choice but to rely on them as the basis of our understanding of the opening sentence. We can therefore conclude that the datives in line 2 represent the normal construction with aV1TtJJ.0AEV and indicate the object of contention, and the purpose of the provision is to prevent the seizure of a person whom one claims to possess without a trial. We might add that this use of aV1TL with the dative is fully consistent with its use in Homer.22 Since we have found Rosen's interpretation to be impossible on linguistic grounds, we need not labor the many legal difficulties it raises, but a few remarks on this aspect of the question are not out of place. The most obvious objection, one that in itself would probably be sufficient to refute Rosen's view, is that there is no parallel at Gortyn for the direct participation of slaves in litigation. In fact masters at Gortyn (and elsewhere) regularly engaged in litigation on behalf of their slaves, as is clear from a number of laws concerning slaves, such as I. Cret. IV 47.1-8, inscribed perhaps a little earlier than the Great Code:23 22 Note that elsewhere in the Great Code (WTrl is used with the accusative (as often in Homer) in the sense of 'about, concerning'. In addition to the passages already considered (1.18, 6.26f, 9.19), it is used twice (5.46f, 6.52) in the context of disagree­ ment 'about' a point. Rosen is thus wrong to claim (13 n.6) that the genitive is always used in legal language to indicate the object of the dispute; he also wrongly invokes Meister's support for this claim (supra n.7). 23 I follow Guarducci's text, except that I take ICaraICE'p.EvOS as part of the first sentence modifying GOAOS and GOAa but placed first in order to indicate to the reader the subject of the provision; see supra n.2 135 n.26. GAGARIN, MICHAEL, The First Law of the Gortyn Code , Greek, Roman and Byzantine Studies, 29:4 (1988:Winter) p.335 342 THE FIRST LAW OF THE GOR TYN CODE 1 , " ~ 1 ~ ~). ... ~ '). '" 8 1 ICaTaICElJJ.EVOS, a& IC au&IC71CTEl uOI\OS 71 UOl\a, on JJ.EV ICa ICaTa EJJ.EVO ). 1 , 1 ~ 8 1 '~I " ,'~,,', ICEI\0JJ.EVO aJJ.apT71& TOL ICaTa EJJ.EVOL Tav uLICav 71JJ.71V, on uE IC aVTOS \ .--. ..... .", ''t:' )/ ,...~, 8 1 wpo FLaVTO TaL apICaLOL waCTTaL Tav uLICav TlJJ.71V TaL uE ICaTa EJJ.EVOL 1 JJ.71· If a male or female slave given as security wrongs (someone), if he does wrong on the order of the man who accepted him as security, the suit shall be against the man who accepted him as security; but if he himself on his own (wrongs someone), the suit shall be against his old master and not against the man who accepted him as security. The law adds (8-10) that in this latter case, if the old master loses, he is to pay the man who accepted the slave as security "what he owes.» The exact meaning of this last provision is unclear, but it is abun­ dantly clear that all the legal transactions in this case are handled by the slave's past and present masters; the slave himself takes no direct part in the litigation.24 This law concerns the procedure for remedying wrongs done by slaves who are given as security. It addresses the question, which master is to be sued in court for the slave's wrong, his old, permanent master or his new, temporary master?The law does not even consider the possibility that a suit might be brought against the slave. On the contrary, it presumes that suits involving the wrongdoing of slaves are brought against their masters. Here there is simply a question of which master. Thus this law provides clear evidence at Gortyn for the otherwise universal Greek practice of masters engaging in litigation on behalf of their slaves, and it seems inconceivable in such circum­ stances that the first column of the Great Code could so frequently and easily speak of slaves being involved in litigation, even against one another, as Rosen would have us believe.25 Van Effenterre tries to meet this objection by arguing that slaves at Gortyn were allowed to marry and own property, so that it is possible that someone could have wished to carry out a pretrial seizure against a slave, even if his master would in the end represent him in court. 26 True enough, but the first sentence reads (according to Rosen) "whoever is going to 24 Cf /.Cret. IV 41.v.4-11 (cf GRBS 25 [1984] 345f), which concerns a situation in which a free man is temporarily indentured to another man. If he does wrong on the order of his temporary master, he shall not be liable (presumably the master is), but if the master denies giving the order, the judge shall decide. The implication is that the indentured man is himself liable if he acted on his own. The contrast between the free man, who is liable for actions he commits on his own, and the slave, whose master is liable, is clear. 25 See especially his interpretation of 1.18-20 (discussed above). 26 Supra n.6: 50f; he is responding to an objection raised by Maffi (supra n.5) 13. GAGARIN, MICHAEL, The First Law of the Gortyn Code , Greek, Roman and Byzantine Studies, 29:4 (1988:Winter) p.335 MICHAEL GAGARIN 343 contend in court (lz.v7rtILOAEV) against a free man or a slave." Such a law would clearly envision the possibility of a trial in court with a slave as the opposing litigant,21 not just a dispute with a slave who would then be represented in court by his master, and the objection still stands that in Gortynian law a slave is always represented in a legal case by his master. Other difficulties with Rosen's interpretation of the first sentence are the lack of an object for l1.YfV in line 3, the fact that the fines for an illegal seizure would apparently be the same whether one seized one's neighbor's wife or his goat, and the fact that a slave would be fined only half as much as a free man, whereas for the sexual offenses in column 2 a slave is fined twice as much. 28 There are also many difficulties with his interpretation of the remainder of the column. But enough has been said that we may with full confidence lay aside Ro­ sen's proposal and retain the traditional interpretation of the first sentence at Gortyn. Let me add, however, that in rejecting Rosen's in­ terpretation of this and several other passages whose interpretation stems from his view of the first sentence, I do not mean to dismiss all his comments on the language of the Code. In particular his remarks on the impersonal use of oLKaaafV and the transitive force of 0ILvvvTa bear further examination in the context of Gortynian legal procedure. To repeat, it is never wrong to subject traditional views to close scrutiny. In the case of the first sentence of the Gortyn Code, however, the traditional view is clearly right. UNIVERSITY OF TEXAS, AUSTIN January, 1989 27 fJ-0Aiv designates the formal bringing of a case to court, not just an informal dispute, as is clearly seen in a passage like I. eret. IV 41. VI, where fJ-l5Aiv occurs three times without an object and means 'bring a suit'. 28 On these problems see Rosen 15f, Maffi (supra n.5) 14f, van Eifenterre (supra n.6) 50.