How Much New Is There in the Old? Themis, Dike and an Evolutionary Understanding of Ancient Greek Normativity

Jan Skarbek-Kazanecki^*

Uniwersytet Łódzki
https://orcid.org/0000-0002-4127-4070

Quanto di nuovo c’è in ciò che è antico? Themis, Dike e l’evoluzione del pensiero normativo nell’antica grecia

In the book Ancient Greek Democracy and Its Significance for Us Today Cornelius Castoriadis discusses the phenomenon of colonization (apoikismós) in the Archaic period, highlighting a particular aspect of the organisation of Greek communities (Castoriadis 1986: 19):

The ancient Greeks were not the only people to establish colonies, but their approach to colonization had a distinctive feature that set them apart from other peoples. For instance, Phoenician colonies replicated the laws of their mother cities without modification, much like Jewish communities following the diaspora adhered strictly to the laws of Jehovah and their traditional way of life. In contrast, both the first and second wave Greek colonies adopted their own laws or appointed lawgivers to craft legal frameworks suited to their specific circumstances.

Although Castoriadis idealises the democracy of ancient Greece and its institutions in many respects (cf. Karakantza 2020: 149–150), he correctly emphasises the absence of a dominant “pan-Hellenic” legal code or universal codification within the Greek cultural sphere. This absence allowed for a degree of freedom in the establishment of laws. It is often noted that in Greece, there was no singular poem or universally accepted “sacred text” of unquestionable authority that clearly defined the rules of communal life or the relationships between humans and gods. In this regard, the Greek legal system stood out among other ancient cultures: as Oswyn Murray (1993: 181 [1978¹]) notes, “the origins of Greek justice are human” and “Greek law derives (…) not from any set of divine commandments, but from the human recognition that individual judgements ought to follow a pattern”.^[1] In this respect, as Lloyd (1979: 247) further observes, with the development of polis institutions “the laws themselves become the subject of open debate and depend upon public consent.”

In contrast to the perspective outlined above, analyses of Archaic Greece can also be approached from a different angle: seeking similarities between the systems and institutions of the emerging city-states, identifying a “common ground” (Biscardi 1982: 9) among the early Hellenes, or emphasizing the “spiritual unity” (geistige Gemeinsamkeit) of Greek law.^[2] This approach highlights how traditional norms shaped key solutions adopted by individual poleis. An example of research following this model is the work of Professor Joanna Rybowska, to whom this volume is dedicated, particularly her monograph Piety and Impiety in Greek Culture (Rybowska 2017). Although the scholar frequently emphasized that Greek religion was an “open system,” with both local and pan-Hellenic dimensions, the main focus of her analysis was the search for the “most important religious laws of the ancient Hellenes” (2017: 576) – universally accepted rules that connected distant poleis. Notably, these customary laws, referred to in early archaic epic as themistes (see below), were fundamental to the organization of Greek communities and, in the legal dimension, took precedence over local regulations concerning religious, social, and political life.

As we will see, at the turn of the 19^th and 20^th centuries, these two seemingly contradictory research perspectives were reflected in progressive (teleological) theories – evolutionary concepts that portrayed the Archaic period as an era of conflict between “old” and “new” normative spheres. Notably, this historical process was often understood as being expressed through the conceptual opposition of themis and dike: two normative categories supposedly indicating distinct “moments” in the transformation of the socio-political realities of ancient Hellas.

The aim of this article is a hermeneutic analysis of the controversy outlined above: to uncover the assumptions underlying these paradigms and to reconstruct the broader context of the debate concerning the birth of the polis and the nature of key public (political) institutions of the Archaic period. I also intend to highlight the influence that both models exert on contemporary studies dedicated to the key legal categories of the Archaic and Classical Greeks, including the understanding of themis and dike.^[3]

Preliminary remarks on the categories of themis and dike in the archaic age

The events of Homer’s epics unfold in a mythical past, meaning the realities depicted do not directly reflect the everyday life familiar to the rhapsodes who composed and transmitted them. Over the past century, this observation has led many to question the value of these epics as historical sources.^[4] Critics have argued that the Iliad and Odyssey are merely fantasies, fictional accounts created by the illiterate people of the “Dark Ages” (i.e., those living in the 8th century BCE or earlier), imagining heroes from a time before the fall of Mycenaean palaces and other catastrophes that ended Bronze Age civilizations.^[5]

Today, however, such scepticism is rare. Scholars now argue for at least partial accuracy and historical credibility in the Iliad and Odyssey. They point to the consistency of the customs and social rituals described by Homer, as well as the coherence of the terminology related to (quasi-)legal institutions and procedures that organize the lives of the heroes portrayed. In the Greek epic tradition, themis (plural themistes) provides an example of such rules – “stored in the collective memory” (Jeffery 1976: 42) and “rooted in tradition.”^[6] This term often encompasses various prohibitions or commands, both religious, such as the obligation to pray and make libations before beginning a feast (Od. 3.43-7, trans. R. Fagles):

εὔχεο νῦν, ὦ ξεῖνε, Ποσειδάωνι ἄνακτι:
τοῦ γὰρ καὶ δαίτης ἠντήσατε δεῦρο μολόντες.
αὐτὰρ ἐπὴν σπείσῃς τε καὶ εὔξεαι, ἣ θέμις ἐστί,
δὸς καὶ τούτῳ ἔπειτα δέπας μελιηδέος οἴνου
σπεῖσαι …

Say a prayer to lord Poseidon, stranger,
his is the feast you’ve found on your arrival.
But once you’ve made your libation and your prayer –
all according to ancient custom (thémis) – hand this cup
of hearty, seasoned wine to your comrade here
so he can pour forth too. (…)

as well as regulations concerning public order, such as the “right” to criticize a political leader in a public assembly (see below, paragraph 3). Themistes point to an eternal and universal “order of life,”^[7] whose source and guarantors were the gods.^[8]

In Homer, alongside themistes – the divine and timeless rules of collective life – there are also dikai: public “decisions” or “judgments” issued in response to conflicts within the community. In this regard, the concept of dike opens up a wide field of speculation about the existence of proto-legal procedures in early Archaic Greece, with a significance and impact analogous to those found in modern legal systems.

A striking example of a Homeric “court-show” or judicial process can be found in Book XVIII of the Iliad. In a monumental ekphrasis, the narrator presents a vivid depiction of the Shield of Achilles, crafted by the god Hephaestus. This image represents a kind of microcosm (Edwards 1991: 213) and a celebration of orderly social life (lines 497-508, trans. R. Lattimore):

λαοὶ δ᾽ εἰν ἀγορῇ ἔσαν ἀθρόοι: ἔνθα δὲ νεῖκος
ὠρώρει, δύο δ᾽ ἄνδρες ἐνείκεον εἵνεκα ποινῆς
ἀνδρὸς ἀποφθιμένου: ὃ μὲν εὔχετο πάντ᾽ ἀποδοῦναι
δήμῳ πιφαύσκων, ὃ δ᾽ ἀναίνετο μηδὲν ἑλέσθαι: 500 ἄμφω δ᾽ ἱέσθην ἐπὶ ἴστορι πεῖραρ ἑλέσθαι.
λαοὶ δ᾽ ἀμφοτέροισιν ἐπήπυον ἀμφὶς ἀρωγοί:
κήρυκες δ᾽ ἄρα λαὸν ἐρήτυον: οἳ δὲ γέροντες
εἵατ᾽ ἐπὶ ξεστοῖσι λίθοις ἱερῷ ἐνὶ κύκλῳ,
σκῆπτρα δὲ κηρύκων ἐν χέρσ᾽ ἔχον ἠεροφώνων: 505 τοῖσιν ἔπειτ᾽ ἤϊσσον, ἀμοιβηδὶς δὲ δίκαζον.
κεῖτο δ᾽ ἄρ᾽ ἐν μέσσοισι δύω χρυσοῖο τάλαντα,
τῷ δόμεν ὃς μετὰ τοῖσι δίκην ἰθύντατα εἴποι.

The people were assembled in the market place (ein agorêi), where a quarrel
had arisen, and two men were disputing over the blood price
for a man who had been killed. One man promised full restitution
in a public statement, but the other refused and would accept nothing.
Both then made for an arbitrator, to have a decision;
and people were speaking up on either side, to help both men.
But the heralds (kḗrykes) kept the people in hand, as meanwhile the elders (gérontes)
were in session on benches of polished stone in the sacred circle
and held in their hands the staves of the heralds who lift their voices.
The two men rushed before these, and took turns speaking their cases (díkazon),
and between them lay on the ground two talents of gold, to be given
to that judge who in this case spoke the straightest opinion (díkēn ithýntata eípoi).

The connection between the quoted lines and the procedures for publicly administering justice seems undeniable. The described procedure is highly formalized (or even “ritualized,” see Raaflaub 1997: 12–13): on the agora, alongside a crowd of spectators gathered to listen to the dispute (neîkos, v. 497), there are “heralds” (kḗrykes) overseeing the proceedings, as well as the “elders” (gérontes, v. 503), the main figures in the scene.^[9] They sit on designated stones, ‘in a sacred circle’ (hierôi enì kýklōi, v 504), and, with the right to speak conveyed through the heralds, they also pass around the scepter (skêptron) – a symbol of authority, which, in Homer, connected the speaker’s competence to the will of Zeus and the divine norms (themistes) established by the god.

Unfortunately, we cannot be certain of the exact nature of the process described (cf. Wolff 1946: 43): whether both sides of the conflict – apparently over financial compensation (poinê, l. 498) for the murder of a relative – are participating voluntarily, and whether the verdict is reached through a compromise by all parties, or imposed by the decision of the community’s representatives. However, descriptions of similar procedures in other parts of the epic (see below) suggest that the elders, whose role is characterized by the phrase “to speak dike” (díkēn eipeîn) and the verb dikazein, primarily act as arbitrators, tasked with resolving the dispute. In other words, in this scene, dike refers to a verdict (Urteilsspruch), as Latte (1946: 64–65) writes, a decision^[10] acceptable to all parties, bringing the conflict to a peaceful resolution. Similarly, the verb dikazein indicates the act of delivering dike.

I would like to emphasize that in the quoted passage, the concept is further defined by the adjective ithýs (feminine form: itheîa). As Hartvig Frisch (1949: 41) notes, itheîa díkē in the epic tradition is a standard expression for a “just verdict,”^[11] contrasted with skoliḕ díkē, meaning a “twisted” or “crooked” decision (cf. Rousseau 1996, § 9). In the scene from the Shield of Achilles, the text even refers to the person who “would speak the dike (judgment) in the straightest (most just) manner” (Il. 18.508). Thus, as Yamagata (1994: 66) has observed, dike is gradable, and not every verdict or proposed resolution of a dispute referred to by this term is necessarily correct, appropriate, or just (see also Lloyd-Jones 1971: 166–167; Lesky 1985: 21).

Reconciling contradictions: Evolutionary explanations in modern scholarschip

As I stated in the introduction, the dominant interpretations of the normative and legal sphere of the ancient Greeks oscillate between two extremes. The first tendency focuses on the freedom and autonomy of the earliest lawmakers. According to this interpretative model, political decisions in the emerging poleis were made in abstraction from tradition (or from those cultural norms that might have been regarded as “traditional” or “divine”). The second paradigm, by contrast, posits the existence of shared pan-Hellenic practices, a unified le­gal terminology, and, most importantly, similar cultural norms underlying the legal sanctions and regulations enacted in individual polis.

Surprisingly, for many scholars of the 20^th century, the interpretations outlined above were not necessarily exclusive of one another. Rather, they represented different moments within a broader historical process: the gradual negation and rejection of traditional norms legitimised by divine authority in favour of a dynamic normative-political order based on compromise and independently developed rules of communal life. The trajectory of this evolutionary dialectic was illustrated by two categories discussed above, namely themis and dike. These categories belonged to distinct historical “moments” and, moreover, represented conceptual articulations of two contrasting normative-legal systems. The themistes were said to embody ancient, archaic norms – values or rules deeply rooted in the “Dark Ages,” perhaps even the Mycenaean era.^[12] By contrast, the concept of dike – which, as we have seen in Homer, signified “verdict” or “decision” and was used in the context of communal, consensual actions – was thought to point to the order of the emerging polis: a new normative system much closer to the “civic values” of the classical period, based not on the authority of the gods but on human decision-making.

The most influential work framing the relationship between themis and dike in this chronological (evolutionary) perspective is arguably La solidarité de la famille dans le droit criminel en Grèce by Gustave Glotz (1904; see also 1928 = 1994 and 1996). In this study, the starting point for considering the significance of the terms discussed above is the question of the dynamics and character of socio-political changes in Homeric times.^[13] Assuming that the basis of the social system in the early archaic period consisted of “aristocratic” families (genos in the singular) – which, in his view, were closed to the outside world and united by “pride in their divine blood” and power derived from military strength (1904: 238) – Glotz distinguished “two kinds of justice” (deux sortes de justice, 1904: 21). The first, expressed by the term themis, referred to traditional norms and elite (“aristocratic”) values regulating relations within the family, as well as the authoritarian decisions made by the leader or head of the family. Opposed to themis, the concept of dike was thought to reflect “inter-familial law” (le droit interfamilial, 1904: 20), open to interpretation and aimed at achieving compromise between conflicting families. Moreover, this law was seen as distinct from morality or traditionally understood normativity.^[14] In times of dynamic socio-economic changes, rising class conflicts, and the crystallisation of the “city-state” community, it was dike, according to Glotz, that became the central concept of the value system of the polis and a synonym for civic obligations prioritised over the interests of close friends and relatives (1904: 238–241).^[15]

Thus, two seemingly contradictory intuitions – the first emphasising the relative stability of Greek norms rooted in divine authority, and the second highlighting the dynamic character of the contemporary normative-political order (based on compromise and the willingness to shape collective rules) – resonate and complement each other in the form of the concepts of themis and dike. Furthermore, this dichotomy long seemed to provide an excellent explanation for the tension between “eternal laws” and the statutory laws of the polis, a tension evident in Athenian literary texts of the fifth and fourth centuries BCE.^[16] Although the debates of the classical period concerning the nature of law and its boundaries employed terms other than the themis–dike dichotomy – closer to the political and legal realities of the time – Rudolf Hirzel (1907, cf. Ostwald 1973a = 2009: 128–130), another scholar no less influential than Glotz, argued that these debates reflected a complex Greek attitude during the era of the developed polis toward those rules that were once encapsulated by the term themistes.

Beyond progressivist approaches

Glotz’s assumptions had a profound impact on research across various fields, including literary studies, the history of philosophy and law, as well as linguistics. This influence is clearly evident in numerous publications, including the works of renowned scholars such as Louis Gernet (1917: 22–24, 459–462), Émile Benveniste (2016 [1969¹]: 391–394), Jacqueline de Romilly (1971: 9–14), and Arnaldo Biscardi (1982: 351–360). These works commonly assert that the concept of themis in Greek normative thought represented divine and eternal rules, whereas dike and its derivatives “sanctioned laws established by humans.”^[17]

While this interpretative model achieved significant success in the 20^th century, it also raises numerous methodological questions and concerns. The main criticism of this framework is its anachronistic perspective, heavily reliant on later sources, especially narratives and discourses about “justice” originating in classical Athens. The themis–dike model is, in this sense, dependent on categories, concepts, and antinomies alien to the archaic period, such as nomos–physis,^[18] written versus unwritten laws, or “civic obligations” versus “family solidarity.”^[19] As Rosalind Thomas observes (2005: 53, 59; also 1994: 124–127 and 1996), the questions posed in 5^th- and 4^th-century BCE literary works or political speeches about the status and role of “eternal norms/laws” do not reflect the actual operation of socio-legal rules in archaic Greece.^[20] Instead, they express concerns specific to the classical period, such as anxieties about the development of legislative practices or fears of the legal system’s instrumental manipulation by political leaders. In this respect, the evolutionary model of Greek justice proposed by Glotz and his followers not only distorts the perception of the archaic era but also unjustifiably oversimplifies many classical texts.

As emphasised by Felix Bourriot (1976: 252) and David Bouvier (2002: 235–245, 248–252), there is not a single verse in the epic tradition that unequivocally supports Glotz’s interpretation. While some rules depicted in Homer, particularly in the Odyssey, may suggest a “familial” or “kin-based” order (cf. Bourriot 1976: 240–259), the heroes of both epics are defined not only by their kinship ties but also by their affiliation with the polis. In this regard, any attempts to use the categories of themis and dike to justify evolutionary models^[21] – portraying old, unwritten laws (identified with themistes) as opposing the polis order and its “civic” values, represented by the term dike – must be considered unfounded.^[22]

How, then, can we understand the relationship between these concepts? Contrary to the assumptions of Glotz and his followers, themistes did not constitute a coherent, fixed, and transparent set of social norms characteristic of the archaic era (cf. Elmer 2013: 84–87). The use of this concept in the epics, especially in the Iliad, seems to affirm the fluidity and instability of norms. This, in turn, supports the arguments of scholars who focus on the performativity of discourses and normative orders. As Jacques Derrida (1988: 1–23, 29–110) and Judith Butler (1990) have argued, the boundary between constative speech (statements describing existing facts) and performative speech (acts that create entirely new rules) is always fluid. New norms never emerge ex nihilo, and the durability of an order regarded as “traditional” or “eternal” within a given society inherently relies on its continual “re-enactment” (performance) and repetition. From this perspective, we can never be certain whether Homeric heroes invoke a particular themis because they believe in its objective and eternal nature, or whether they use the concept to impose their own will on others.

Abandoning the outdated evolutionary models and terminological assumptions derived from Glotz’s work allows us to reinterpret themis as a dynamic tool for shaping cultural norms and mechanisms of power. This shift also illuminates the complementary relationship between themis and dike.^[23] While traditionally viewed as opposites, dike – already in the Iliad – emerges as a term denoting a “verdict” or “decision.” It signifies a consensual act primarily aimed at resolving personal disputes, contrasting with the divine and universal character often attributed to themistes. Nevertheless,^[24] it is important to reiterate (see paragraph 1) that within archaic epic traditions, themistes are primarily depicted as eternal, divine principles governing human interaction. Discourses invoking this concept legitimise the creation and internalisation of norms through divine figures, differing fundamentally from the human-centred procedures of conflict resolution on the agora, which generate dike. By discarding the entrenched scholarly biases regarding the relationship between themis and dike, we open new avenues for exploring these concepts. This fresh perspective invites deeper inquiry into how these notions functioned within the cultural and normative frameworks of archaic and classical Greece.