Rage and Law
The Argument for Legal Process on Achilles’ Shield
“For to establish the rule of a human being
is to bring in a wild beast,
for desire is like a wild beast . . .
The rule of law, on the other hand, is
the rule of intelligence without appetite.”
Aristotle, Rhetoric 1287a15-13.
THE ILIAD, POEM OF ACHILLES’ RAGE AND ITS RESOLUTION
Achilles' Rage
Rage—in Greek mēnis—is the opening word of Homer’s Iliad and thereby the first word in Western literature: “Rage—Goddess, sing the rage of Peleus’ son Achilles.”1 From first to last, the Iliad is haunted throughout with the godlike Achilles’ unseemly rage. His rage was sparked by Agamemnon, the leader of the Greeks. It was transferred to Hector, the great Trojan warrior, when he killed Achilles’ friend, Patroclus. It ended only when he allowed Hector’s corpse to be buried with a fitting burial. Achilles’ rage was the source of “woes unnumbered” both to the Greeks and the Trojans. Its resolution is one of the great themes of Homer’s epic poem.2 One of Homer’s arguments in his treatment of Achilles’ rage was that rage was incompatible with communal living. Its arrogation into a legal process was a great advance in civilizing man, removing him from an environment in which his life was, in the words of Thomas Hobbes (who himself a Homerist translated the Iliad), “solitary, poor, nasty, brutish, and short.”3
Rage is the result of an offense, and it is only assuaged by vengeance. The desire for vengeance is satisfied by the offended imposing force on the offender without reference to moral or positive law, in disregard of legal process, or without benefit of impartial judgment. The exercise of vengeance by the aggrieved renders him superior to the person who has grieved him, in disregard of the latter’s humanity. The rule of rage and vengeance—which therefore disdains notions of law, equality, legal process, and an impartial judge—is incompatible with the Rule of Law.
Interpretation of Homer's Achilles Shield
The early Greeks recognized the damaging social effect of rage and sought to develop legal processes to mitigate it. During the Greek civilization’s evolution from the preliterate to the literate stage, the Greeks developed a judicial process—both formal and public—to control the destructive effect of rage. The Greeks saw this judicial process as a constructive means to control rage and the vengeance it spawns, to resolve disputes, and to render each his due. Thereby they hoped to substitute a terminal justice (dikē) for the cyclical and socially dislocating nature of revenge. This legal process was public and involved the people of the city. It was the germ of Greek democracy and jury trial. The preliterate Greek concern with legal process as a means to control rage was reflected in Homer’s Iliad, most significantly in the description of the shield of Achilles wrought by the god Hephaestus, found in Book 18 of that epic poem. The shield of Achilles reflects a litigation scene within a fair city (polis) at peace. It is the first mention of legal process for the resolution of disputes in the history of the West. So the epic poem that starts with rage (mēnis), ends with a remedy other than violence, justice (dikē).
THE SHIELD OF ACHILLES
The Iliad begins with the various Greek tribes besieging the city of Troy. The Greeks were led by Agamemnon, king of Mycenae. They were suffering a plague because Agamemnon had captured the daughter of a priest of Apollo. When the priest’s daughter was returned to him, Agamemnon sought a substitute as was his kingly prerogative, and he took Achilles’ war plunder, the girl Briseis whom Achilles loved. Achilles became enraged at Agamemnon, and withdrew from battle with his tribe, the Myrmidons.
Haephestus at Work on Achilles' Shield
Achilles was the son of the mortal father, Peleus, and a goddess, Thetis. Thetis entered into an arrangement with Zeus to assure that the Trojans would win as long as Achilles stayed out of battle. When the Trojans were on the verge of victory, Agamemnon attempted to reconcile with Achilles, but the enraged Achilles refused any overtures at resolving his dispute with Agamemnon. Later, as a compromise, Achilles was persuaded by his brother-in-arms and dear friend, Patroclus, to fight using Achilles’ armor and lead the Myrmidon troops in battle. Patroclus was killed, and Achilles’ armor was taken from his body by the Trojans. Enraged at the death of his beloved friend at the hand of the Trojan warrior Hector, Achilles decided to reconcile his differences with Agamemnon and return to battle to avenge the death of Patroclus. Rage drove out rage. He was without armor, however, so his mother Thetis went to Olympus, sought the aid of Hephaestus, the blacksmith god, and he crafted a shield and other armor for her son.
Achilles Shield
The shield Hephaestus crafted is a miniature world—a microcosm—of Achilles’ world and the preliterate world of the Greeks.4 At the shield’s center are two cities: one at peace, and one at war. Surrounding the cities are rural scenes: vineyards, cornfields, shepherds, and sheep. It is a magnificent tour de force by Homer, one which led the classical scholar Werner Jaeger to state, “the finest expression of the epic view of human life is the pictures on the shield of Achilles.”5
THE LAWSUIT
Though there is not war in the city of peace on the shield, there is conflict. But the conflict is being resolved through legal process, not through violence as in the conflict in the rest of Homer’s poem. Moreover, the relief sought by the aggrieved party is not revenge, but justice (dikē). This lawsuit scene has been characterized as the “most important of all Homeric passages referring to judicial proceedings.”6 The reason for its importance is that it contains the “clearest and strongest evidence for the existence of a formal public legal procedure in preliterate Greece.”7 The judicial procedure in the city of peace is markedly contrasted with the destructive process in the city at war, and with the lack of process in the rural life. “The shield of Achilles thus contains the implicit message that judicial procedure is central to the life of the polis.”8 So the lawsuit begins:
[XVIII.580-84]
THE DISPUTE—POINĒ
Evidently, a man has been killed in this fair city at peace, and under Greek custom, the homicide of another had to be paid back—either with another life or with blood money, a recompense—in Greek, poinē. Both disputants in Achilles’ shield appear to subject themselves voluntarily to a legal process which is both public (it takes place in the agora or marketplace) and formal.9 There is however significant ambiguity in Homer’s words regarding the precise issue in dispute, so the scene has been variously interpreted.
What appears clear is that the scene does not depict a homicide case in which a victim is suing an offender for damages; this is not a personal injury case in any ordinary sense. Rather, the dispute is over the blood-money or poinē owed, and it is with respect to the poinē that both parties appear to have some issue.10 Some commentators have proposed that what is at issue is whether the blood-money (poinē) has been paid, one party claiming its payment, and the other party denying it.11 Others have advanced the theory that what is at issue is whether the blood-money must be accepted by the aggrieved family. If not accepted, the result will be a blood feud, resulting in either the death or exile of the killer.12 Neither of these explanations, however, reconcile the ambiguity in Homer’s Greek. To try to reconcile the ambiguity, others advance more subtle and complex explanations.
Based upon the fact that the killer speaks first, the German scholar Hans Julius Wolff argued that the killer is seeking the protection of the court from the aggrieved party’s threats to use self-help, either because the killer has not paid the blood money or the aggrieved kinsman refused to accept it. This protection is available to the killer until the aggrieved party brings process before the court and obtains a judgment.13
University of Texas Professor Michael Gargarin has disagreed with Wolff, and suggested two alternative explanations. As one alternative, he has suggested that there is a dispute among family members of the deceased as to whether to accept the poinē or not.14 As another alternative, Gargarin has proferred the suggestion that what is at issue is the amount of poinē, a portion of which has been paid or deposited in escrow. The relatives of the victim do not consider the amount of proposed poinē sufficient, and are posturing a total refusal so as to receive more.15
The Stanford Homerist Mark W. Edwards has proposed that the litigants are fighting over two different things. The killer is claiming to have the right to pay poinē, and therefore to preserve his life and be free of any other penalties such as exile. The other party claims a right to refuse any pecuniary substitute, and demands either the death or the exile of the killer.16
Based upon comparison with the legal practices of Near Eastern and Mycenaean Greek societies, Raymond Westbrook, Professor of Ancient Law and Assyriology at Johns Hopkins University, has argued that the aggrieved parties have the right either to take revenge or accept poinē in lieu of that right. If the parties cannot agree on that issue, the court will have to decide: (1) whether revenge or poinē is appropriate, depending on any mitigating circumstances relating to the killing; and (2) the kind and quantity of legal revenge (e.g., death or exile of the culprit, his family, whipping) or poinē that is appropriate.17
THE JUDGE—ISTOR—AND FORMALITIES
Whatever the precise nature of the dispute between them, the parties voluntarily submit to a legal process, and a significant element of that process is recourse to a judge or arbiter, istor in Greek.
[XVIII.585-92]
The word istor, which means judge or arbiter, is derived from a root word meaning to “see” or to “know.”18 Literally, therefore, the istor is “one who sees and knows what is right.”19 Armed with the vision and knowledge of the right, the task of the istor is to craft the straightest verdict or judgment, one in conformity with custom (themistes). Whoever the judge and however chosen, his wisdom is to be repaid by the two gold talents or “bars” at the elders’ feet. The two talents are probably contributed by the litigants.20
Curiously, in his translation Robert Fagles translated peirar as “cut the knot.” The word peirar is commonly defined as an end or limit or completion of a thing, or a boundary or cut off. In the context of a legal proceeding, it may be construed as referring to the final decision; hence, verdict, judgment, or “doom” appears the appropriate translation.21 Richmond Lattimore translated this verse more accurately: “Both then made for an arbitrator, to have a decision.”22 Robert Fitzgerald translated the same verse similarly: “Both demanded a verdict from an arbiter.”23
Other details of significance that are revealed by Homer in his description of the lawsuit depicted on Achilles’ shield is the scepter or staff (skēptron). The skēptron is a symbol of public recognition; it is a symbol of public authority, both a “judge’s symbol” and a “speaker’s symbol.”24 The person who holds it has the floor during the legal proceedings at the agora, and with it the right to speak. There are also officers employed to maintain order, bailiffs or heralds (kērykes), who hold back the crowds. The kērykes also appear to be responsible for handing the scepter or staff to the proper party, as the procedures that govern the legal proceeding or due order require.
THE PEOPLE—LAOS AND DĒMŌS—AND INCIPIENT DEMOCRACY
Who is the arbiter or istor? Professor Emeritus of Classics at the University of Glasgow Douglas M. MacDowell saw the issue of who is the final decision maker in the legal process as the most important question in Homer’s description of Achilles’ shield. Various solutions have been proposed to this issue, but four general theories appear to have been advanced. The first theory, which may be called the monarchical theory, is that the judge is the presider among the elders—either the king (basileus) or a chosen elder. This presider renders judgment after consultation with the other elders. A second theory may be labeled aristocratic, and that theory advances the notion that the elders decide the judgment among themselves by majority vote. Another theory is that the judge is the person whose judgment is accepted by the litigants, who will be influenced by the opinions of the elders and the crowd.25
The fourth theory may be called democratic, and it suggests that the judge is the elder whose opinion is lauded or approved by the people as the best or most consonant with custom (themistes). The judge or arbiter will be chosen by the acclamation of the people; accordingly, under this theory the people have a significant role in the administration of justice.26 If the people had a role in selecting the judge based upon the judgment it favored (the theory preferred by MacDowell), we see in Achilles’ shield an inchoate democracy and the seeds of jury trial, features that were to bloom centuries later among the Athenian Greeks.27 But—whether the people had a direct role or not—the participation of the public was required in preliterate legal proceedings because in the absence of written records public memory was needed to attest to what has been promised, agreed to, or adjudged.28 Moreover, public opinion surely put pressure on the parties to subject the dispute to legal process.29 Finally, the requirement of public participation may also have aided in the enforcement of the judgment by bringing to bear the force of public approval.30
SEMINAL JUSTICE—DIKĒ
According to Homer, the goal of the legal process depicted on the shield was to gain the “straightest verdict” (dikēn ithyntata). In his book The Justice of the Greeks, Raphael Sealey, Professor Emeritus of History at the University of California-Berkeley, stated that the practical goal of dikē was to “resolve disputes without violence.”31 Dikē was therefore the fruit sought by the preliterate Greeks in the legal process they designed to resolve disputes and avoid the ill-effects of rage and vengeance.32 Originally, a “straight” dikē appears to have been a term referring to a boundary line dividing property between neighbors.33 Thus a “straight” dikē was like a division of property that “fairly divides the legitimate claims of both sides.”34 The word dikē came to mean the “preservation of the established order,”35 but it had a clear procedural or active connotation. Indeed, Havelock stated that the word dikē rapidly became “[t]he ‘master symbol’ of the process of correction when there is an infraction of custom or when competing claims conflict . . . The restoration of custom is a “procedure” and it is seminal justice.”36
It is important to understand that in preliterate Greece the kind of justice to which Homer referred in the Iliad “is not a set of preexistent principles or a set of rulings imposed by judges in the light of such principles. It is a . . . a process achieved through oral persuasion and oral conviction.”37 There was no written or substantive law in Greece during its heroic ages. Written law did not appear among the Greeks until the middle of the 7th century B.C., well after the Iliad had reached its final written form.38
H. L. A. Hart observed that only the presence of writing allows a civilization to move from the “pre-legal” stage to the “legal” stage with substantive legal rules known as law in its central sense.39 During the development of a civilization from the “pre-legal” stage to the “legal” stage, a “proto-legal” stage may be identified.40 Although there is no written or substantive law in a “proto-legal” stage of development, legal processes for dispute resolution that are both public and in some sense formal are in place.41
On Achilles’ shield, therefore, we are provided a peek into Greek legal process before written history, before the development of written or substantive law, before the Greeks developed a full legal system. The shield of Achilles displays the Greeks in a “proto-legal” stage, and it appears to contain the germs of the democratic and participatory legal institutions that were later to play such a large part in classical Athens. “Νόμος, a Law, so great and famous a term in the political vocabulary of the later Greek society,” Henry Sumner Maine observed, “does not occur in Homer.”42 But though law in a strict sense (nomos) may not exist in the oral society described by Homer, legal process for dispute resolution in the formative polis certainly does.
THE ROLE OF RHETORIC
Another aspect of the legal process depicted in Achilles’ shield that was to play an important role in the development of Greek legal systems was the direct participation of the litigants in the process. The Greek legal system stressed the involvement of the litigants, and this quality would give rise to the Greek emphasis on the art of rhetoric. As summarized by Gargarin:
The participatory nature of Greek justice was such that lawyers were not a fundamental part of the litigation process. Rhetoric was thus a highly esteemed art and subject of study. As the Greek system of law developed, however, litigants would hire the services of the skeptical Sophists—who could make the lesser reason seem greater— to teach them the art of persuasion (rhetoric). Socrates and Plato saw this practice as a corruption of reason, and vehemently excoriated the Sophists and their relativistic teachings.
RAGE AND LEGAL PROCESS
Only where reason reins passion can the destructive heroic, competitive, eminence-seeking virtues—glory—be transformed to the constructive virtues of communal, cooperative living—justice. These latter virtues allow for legal process—not raw unencumbered, ungoverned, unreasoned force—to determine disputes. Only when destructive rage and vengeance is controlled can dialogue occur about Truth, Justice, Beauty, and other transcendent values. The Puritan poet Milton recognized this, and so in Book XI of his Paradise Lost, the Archangel Michael showed to Adam—the Biblical Achilles who also chose viciously to his death—“another Scene,” clearly recalling the litigation scene on the Shield of Achilles:
Many centuries earlier, the unknown Pagan author of the “Hymn to Ares,” part of the so-called Homeric Hymns, had the tragic choice of Achilles in mind when he fashioned the following hymn to the Greek god of war:
But for the god to which it is directed, the prayer of this pagan poet ought to be our own.
Endnotes
1 Unless otherwise noted, all translations of the Iliad are to the translation by Robert Fagles, trans., Homer: The Iliad (New York: Viking Penguin, 1990). References are to Fagles’s text by book (Roman numerals) and line number. ⇑
2 Havelock tells us the “mythos of the epic itself” is as “a paradigm of oral ‘justice,’ that is, of legal procedure as conducted in the early city-state.” Eric A. Havelock, The Greek Concept of Justice: From its Shadow in Homer to its Substance in Plato (Cambridge: Harvard University Press, 1978), 133. ⇑
3 Thomas Hobbes, Leviathan (XIII); see generally William V. Harris, Restraining Rage: The Ideology of Anger Control in Classical Antiquity'' (Cambridge: Harvard University Press, 2001), 27, 131-56. ⇑
4 Gregory Nagy, Homeric Responses (Austin: University of Texas Press, 2003), 72; Mark W. Edwards, The Iliad: A Commentary (Cambridge: Cambridge University Press, 2000), Vol. V (Books 17-20), 208. ⇑
5 Werner Jaeger (Gilbert Highet, trans.), Paideia (New York: Oxford University Press, 1945) Vol. I, 49-50. ⇑
6 Douglas A. McDowell, The Law in Classical Athens (Ithaca: Cornell University Press, 1978), 18. ⇑
7 Michael Gagarin, Early Greek Law (Berkeley: University of California Press 1986), 26. ⇑
8 Gagarin, 46. ⇑
9 Gagarin, 27. The voluntary nature of the proceeding has been disputed by the theories of H. J. Wolff and Thür among others. According to Gargarin, neither theory finds support in the text or other evidence. Gargarin, 27-29. ⇑
10 Gargarin, 28. ⇑
11 Edwards, 214; Gargarin, 31-33. ⇑
12 Edwards, 214. ⇑
13 Edwards, 214; Gargarin, 27-29. ⇑
14 Gargarin, 31-33. ⇑
15 Gargarin, 32-33. ⇑
16 Edwards, 215. ⇑
17 Edwards, 215-16. ⇑
18 Gargarin, 31 n. 37. ⇑
19 Edwards, 216. ⇑
20 Gargarin, 30 & n. 35. ⇑
21 Henry George Liddell and Robert Scott, A Greek-English Lexicon (Oxford: Clarendon Press 1940) (s. v. “peirar”). ⇑
22 Richmond Lattimore, trans., The Iliad of Homer (Chicago: University of Chicago Press, 1951). XVIII. 501. ⇑
23 Robert Fitzgerald, trans., Homer, the Iliad (Garden City, N.Y. 1974). Quoted in Gargarin, 31-32. ⇑
24 Gargarin, 27; Havelock, 133. ⇑
25 Gargarin, 30. ⇑
26 MacDowell, 20-21. ⇑
27 MacDowell, op. cit., 21; Russ Versteeg, Law in the Ancient World (Durham: Carolina Academic Press, 2002), 192. ⇑
28 Havelock, 127. ⇑
29 Gargarin, 22. ⇑
30 Gargarin, 22. ⇑
31 Raphael Sealey, The Justice of the Greeks (1994), 102, quoted in Versteeg, 190. ⇑
32 Versteeg, 190. ⇑
33 Gargarin, 23 n. 13. ⇑
34 Gargarin, 23. ⇑
35 Hugh Lloyd-Jones, The Justice of Zeus (Berkeley: University of California Press, 1971), 4. ⇑
36 Havelock, 124 (emphasis added). ⇑
37 Havelock, 136 (emphasis added). ⇑
38 Gargarin, 19, 51-97. ⇑
39 H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 92. ⇑
40 Gargarin, 7-9, 20. ⇑
41 Gargarin, 7-9, 20. ⇑
42 Henry Sumner Maine, Ancient Law (London: John Murray, 1887), 5 ⇑
43 Gargarin, 45-46. ⇑
44 Milton, Paradise Lost, XI.660-68. ⇑
45 “Hymn to Ares,” The Homeric Hymns (Jules Cashford, trans.) (New York: Penguin Books 2003, 106-07. (VIII, 9 ff. The Hymn to Ares is thought to be of Roman origin, (4th cent. A.D.), possibly by Neoplatonist philosopher Proclus. (Notes, p. 165). ⇑
