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ex oriente lex

13 march 2015

I was sent, for review, the late Raymond Westbrook's Ex Oriente Lex … no doubt to put my readerly catholicism to the test, because my credentials to evaluate a study of Mesopotamian influences on Greek and Roman law must be as close to nil as you can imagine. On the other hand, my credentials to talk about any of the books I discuss here are effectively nil, so I face no greater qualms in writing about this one.

And I do teach Homer in translation in my World Lit survey, so essays like "The Trial Scene in the Iliad" and "Penelope's Dowry and Odysseus' Kingship" are useful to me in explaining some dynamics of those epics. In fact, I got Westbrook's book just too late to supplement my lecture on the Odyssey this year. It's always been difficult to explain why Telemachus doesn't just become king when Odysseus is presumed dead, why the suitors are so especially keen to marry Penelope, and how Odysseus got to be king to begin with, since his father doesn't seem to have moved into Assisted Living yet.

Westbrook explains, via logical inference and comparison with the Near Eastern legal systems on which he was a leading expert, that being king of Ithaca was something that went along with marrying Penelope; it must have been part of her dowry. Telemachus has a right to his father's stuff, but not to his mother's necessarily, and not to the kingdom at all, perhaps, especially if she marries someone else and takes the title with her. Suddenly, a custom that seems so familiar to Homer but so weird to us that we just had to overlook it, all this time, when reading the Odyssey, makes pretty good sense.

The treatment of Achilles' shield is far less central to the plot of the Iliad, but has puzzled commentators, and any puzzle in such a major text is a big deal. Homer speaks of trial opponents pictured on the shield, one arguing that he's paid the blood money for murder, and the other arguing that he doesn't want any money. It seems like an odd dispute: if it's a matter of fact it's trivial, and if it's a matter of law both sides should know what the law is. But Westbrook explains that Greek law, again influenced by Mesopotamian, Hittite, and Hebrew traditions, may at an early stage have given aggrieved relatives the right to choose between "ransom" and revenge.

Much of the collected writing that makes up Ex Oriente Lex concerns legal concepts about homicide in the ancient world. We often think of ancient law, from Hammurabi to the Hebrew Bible, as centering on "talio," the principle that one injury deserves another in kind. Westbrook, with vast learning in primary texts, shows that that's true to an extent; but "talio" didn't necessarily involve an eye for an eye and all that. Eyes could always be converted into some kind of price. The physical nature of some offenses made them non-fungible: if you kill your neighbor's ass, after all, you can buy him another ass, but if you kill him, you can't really compensate his father by giving him a son just as good.

Much ancient law was thus a delicate balance between different kinds of compensation and retribution. Altogether different is the notion that a general pollution settles over an entire community in the wake of murder, and must be expiated more abstractly by punishing the killer. The concept of pollution undergirds much Greek tragedy. I wonder, though, how different modern Americans are from ancient Near Easterners. Much as we pride ourselves on being the heirs of the Greeks, and of the Christian Bible (a Greek text that places revenge in the hands of a higher and more abstract God), we still are drawn to the plight of the victim's survivors, and much of our fraught debate over capital punishment is bound up with achieving justice and "closure" for those families.

I was once on a panel for a capital murder trial in Texas, and though the death penalty was not going to be involved, we were polled at voir dire on our views about the penal system. Should prison be for punishment, deterrence, or rehabilitation? the lawyers asked. I went for rehabilitation as the blue/green option, but later thought I should have said "those are three fine-sounding options, but we all know that Americans really lean toward a fourth: revenge." Unless someone really, really pays for a crime – and a lot of us believe death for death is best – then the guilt remains unsettled. Hammurabi and Deuteronomy thought so too.

Although, as Westbrook often notes, Hammurabi and his scribes may not have had much of an abstract sense of legal principles. He sees the great legal codes of the Near East not as legislation but as scholarship. Rather than deductions from first principles, the codes of the Mesopotamians and their heirs seem to represent empirical lists of precedents. You could be a good judge by following them, without reasoning from scratch or your own lights. Gradually, these precedents became abstracted and exemplified; but they never lost their character as observational science.

I am tempted to comment here on the irony of an observational scholar concluding that the texts he studies represent observational scholarship. I am a foe of theory that sees stories and poems as contributions to theory, or rhetoric that sees art as necessarily rhetorical; shouldn't I object to scholars who see legal and historical documents as scholarship? I guess in principle, yes, but I'll just observe here that for all I know, Westbrook is right; and there's no reason folks four millennia ago couldn't have had a scholarly bent.

In any case, I do want to recognize Westbrook's lucid and persuasive prose. Steven Pinker was recently back in the headlines wringing his hands about how academic writing is so terrible. Most people agreed. Most academics agreed. Many said "certainly in my field, academic writing is terrible." But I am coming to believe that that disdain for academic writing is an artifact of reading too exclusively in a narrow field. If you must read everything on a topic, some of it will be bad – the more so if you read a good deal of apprentice work or submissions that never pass peer review. But if you read a collection like the one that editors Deborah Lyons and Kurt Raaflaub have made here, of crystalline argument for specialists and generalists alike, from the corpus of a major scholar like Raymond Westbrook, you will soon drop the contention that academic writing is bad – even when it involves the legalisms of literally dryasdust clay tablets.

Westbrook, Raymond. Ex Oriente Lex: Near Eastern influences on ancient Greek and Roman law. Edited by Deborah Lyons and Kurt Raaflaub. Baltimore: Johns Hopkins University Press, 2015. KL 147 .W475