After Law. Laurent de Sutter

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1 NOMOS

§1. Isonomia. Tradition has forgotten Cleisthenes; of all the great ‘legislators’ of ancient Greece, however, he is doubtless the one whose decisions have produced the most serious consequences – and have enjoyed the most enduring legacy. Unlike his predecessors Draco or Solon, he left just a spectre of his existence; we know of his life only through Herodotus’ account – and of his laws only through the criticisms of his opponents. But it is a spectre that has forever haunted the history of Europe, as though, at a moment that was as crucial as it was unexpected, it had bestowed on it the decisive direction towards what, for modern man, it was destined to become. When we speak of Greek ‘democracy’, of the political moment when, suddenly, a new concept bursts into the history of governance and breaks the old equilibrium of aristocracies, it is really of Cleisthenes that we are speaking. Because it was Cleisthenes who, in order to block the attempt to establish an oligarchy in Athens after the tyrant Hippias had been forced out at the beginning of the fifth century bce, decided, for the first time, to call on the demos. Where the former equilibrium had been based on a familial logic, in order to reform the city’s institutions so that no tyranny could ever return, Cleisthenes chose to embrace a geographical logic. Until then, Athens had been governed primarily by the aristocratic members of the four major Ionian tribes; from now on, it would be governed by the inhabitants of the one hundred ‘demes’ into which he divided the city’s territory. To this new equilibrium, the name ‘isonomia’ was given – equality in the attribution to each of the share to which they were entitled in the city’s governance, guaranteed by the institutions that Cleisthenes had created to this end. We should even, perhaps, be more precise: isonomia did not just define a form of equality in the attribution of stakes; most importantly, it defined a form of equality before the instrument of this attribution. An instrument for which Cleisthenes invented the name, at the same time that he revealed, through the reforms he conducted with its support, the principles that governed it – the name ‘nomos’, the name of ‘Law’.

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§2. Thesmos. Contrary to a common misconception, the invention in Greece of what we still call ‘Law’ was a phenomenon as belated as it was localized – a kind of exotic singularity, belonging to Cleisthenes’ reforms. Before them (before, say, 507–506 bce), no one in the Greek world had ever paid sustained attention to the word ‘nomos’, or imagined that it could signify something like a ‘Law’. This is not to say that the word was unknown: a great variety of usages have been noted, going back to Hesiod (it does not exist in Homer) and encompassing a large proportion of ancient Greek literature, extending to Pindar and Aeschylus. Notwithstanding this diversity of usage, however, none implied the very peculiar form of normativity that has habitually been associated with the idea of ‘Law’, and which Cleisthenes helped instigate. Before his intervention, the Greeks were not familiar with the idea of ‘Law’; they knew only a constrained form of decision or commandment which they called ‘thesmos’ – ‘that which is posited’. When, a century before Cleisthenes, Solon recalled the decisions he had made during his archonship, congratulating himself on the wisdom they demonstrated, he did not employ the word ‘nomos’, but rather ‘thesmos’. It would have been absurd to consider the matter any further: since Homer, this was the word that had been used to refer to the results of the political activity of the city’s leaders inasmuch as it was a matter of an activity focused on positing something. As Émile Benveniste once noted, the Indo-European СКАЧАТЬ