About 2360 years ago, an influential Athenian got a law passed to help some of his friends avoid being imprisoned for not paying a debt to the city. Other Athenians subsequently charged him with legislative corruption. This case would fit easily into a twenty-first century struggle for a well-functioning republic.

In support of this indictment, an Athenian speech described another city’s legislative mechanism. The Greeks living in Locris reportedly proposed laws while wearing a noose:

if any one wishes to enact a new statute, he proposes it with his neck in a noose, and if the statute is judged to be good and useful, the proposer goes away alive, but, if not, the noose is drawn and he dies. … [in more than two hundred years] they had only one new statute passed.[1]

This description highlights the sufficiency of old laws and punishment for proposing new, bad laws. Those points, not surprisingly, are fundamental to this particular case’s indictment.

The noose makes the democratic legislative process unlikely to be used except in extraordinary circumstances. The benefit to a proposer of a new statute would have to be large to compensate him for even a small risk of death for having the proposed law rejected. Only special-interest legislation, with a high level of special interest, or legislation addressing a community emergency in which all had a high interest, would be proposed.

The one new statute passed was of the special-interest type. A one-eyed man reportedly feared that his enemy would blind him. The one-eyed man successfully proposed a new law stating that a person knocking out the eye of a one-eyed man would be punished with loss of both eyes.[2] The offender and the formerly one-eyed victim would then both suffer blindness. This law may have significantly lessened the one-eyed man’s risk of blindness. But undoubtedly it was of little interest to most of the city’s citizens.

Another ancient account describes the noose being used to regulate legal appeals. In this account, a young man challenged a legal judgment of the Locris’ highest legal official, the Cosmopolis:

Thereupon the Cosmopolis summoned him to discuss the interpretation in accordance with the law of Zaleucus; that is, to argue on the interpretation of the law with him before the court of the one thousand, and with a halter [noose] round the neck of each: whichever should be shown to be wrong in his interpretation was to lose his life in the sight of the thousand. But the young man asserted that the compact was not a fair one, for the Cosmopolis, who happened to be nearly ninety, had only two or three years of life left, while in all reasonable probability he had not yet lived half his life. By this adroit rejoinder the young man turned off the affair as a jest: but the magistrates adjudged the question of abduction in accordance with the interpretation of the Cosmopolis. [3]

The young man’s concern is his relatively high cost of losing. But the Cosmopolis and the young man also have much different benefits of winning. The probability of the court supporting the young man’s interpretation is also relevant. Given the large, even if unequal, penalties for the Cosmopolis and the young man, both would be willing to go forward with the appeal only with a small set of dual potential benefits and of dual probability estimates of winning. Just as for the legislative process, the noose makes the appeal process a formality rarely rational in practice.

The institutions of Locris apparently were well-regarded in the ancient world. The Athenian speaker probably would not have invoked the Locrian example if Locrian institutions were widely despised. An influential Greek philosopher described Locris as “a most well-governed [city].”[3] An ancient Greek historian stated that the people of Locris “are believed to have been the first people to use written laws” and that Zaleucus, Locris’ law-giver, was the first to define penalties within laws so as to reduce penal disparities.[4] Locrian sophistication in regulating civic communication is also underscored in other reported Locrian laws:

[a free-born woman] may not wear gold jewelry or a garment with a purple border, unless she is a courtesan; and a husband may not wear a gold-studded ring or a cloak of Milesian [luxurious] fashion unless he is bent upon prostitution or adultery.[5]

These laws craftily stigmatize flashy dressing. A hereditary aristocracy is thought to have dominated Locris’ government. Perhaps aristocrats enacted these laws to lessen opportunities for public resentment toward fellow aristocrats’ ostentatious displays of wealth.

From its beginning, law has had complex motives, meanings, and effects. Recent study has emphasized the accessibility of ancient Greek law to ordinary Greeks.[6] While procedures of legislating and appealing were formally accessible to the citizens of Locris, Locrians could use those institutions only at the risk of their necks. Civic institutions that appeared to be accessible seem to have been more valued than civic institutions that were actually accessible. At least in Locris, constructing the republic was as much a matter of making good poetry as it was building a sturdy house.

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Notes:

[1] From Demosthenes’ court speech, Against Timocrates (delivered in Athens, 353 B.G.C.) p. 37. Epizephyrian Locris, to which Demosthenes probably refers, was a colony that the Locrians, a Greek tribe, founded about 680 B.G.C. on the coast of Italy.

[2] Id. Josiah Ober, “Law and Political Theory,” in Gagarin, Michael, and David Cohen (2005), The Cambridge companion to ancient Greek law (Cambridge: Cambridge University Press) pp. 408-10 considers Demosthenes’ Locrian example. Id. p. 409 states: “The theoretical premise behind Locrian lawmaking procedure is a settled preference for established law and a suspicion that, absent grave risk, would-be lawmakers will seek to benefit themselves rather than the community at large.” The second part of that statement seems to me to be a significant misinterpretation of the Locrian example. A one-eyed man getting a law passed about knocking out the eye of a one-eyed man is surely special-interest legislation. See above.

[3] Polybius, Histories, 12.16, probably written about 140 B.G.C. Zaleucus was a celebrated, archaic-era law-giver for the Epizephyrian Locrians.

[3] Socrates, in Plato, Timaeus, 20a.

[4] Strabo, Geography, 6.1. Zaleucus thus anticipated the U.S. Sentencing Guidelines. The Guidelines reduced federal judges’ sentencing discretion and increased the plea-bargaining power of prosecutors. The Guidelines were overturned in United States v. Booker, 543 U.S. 220 (2005).

[5] Diodorus Siculus, Library, 12.21.

[6] See Gagarin, Michael. 2008. Writing Greek Law. Cambridge: Cambridge University Press.