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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 root *dhè– (which is also found in ancient India, in words such as dharma and dhaman) indicates the foundation, establishment in existence. But this foundation and this establishment never operate generally; they cannot be dissociated from the place [lieu] in which they operate – you only posit in the setting [milieu] of that which posits: thesmos is both the posited and that which posits. Neither Law nor constitution, it is institution in the most original, elementary and rigorous sense; it is the fiat by which what did not exist suddenly appears in the world, finally obtaining the existence that, until then, it lacked.
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§3. Rhêtra. Nothing was more opposed to the idea of institution than the idea of ‘Law’, than the word ‘nomos’ that Cleisthenes had made the cornerstone of his reforms: in no sense did ‘Law’, as he conceived it, aim to ‘institute’. But neither did it aim to ‘constitute’, in the sense that it would have sought to provide the city with something like a charter summarizing the fundamental principles governing its operation. The Greeks had a separate word for this too: the word ‘rhêtra’ – or the ‘thing said’ (rhêtra is linked to the verb ‘to say’, rhêto), that which has been pronounced once and for all, and to which it is no longer necessary to return. It was a word occurring even more rarely than the word ‘nomos’, and seems only to be confirmed in the case of the Spartan ‘constitution’, as discussed by Plutarch in the Life of Lycurgus (VI, 1–3) – which may have been authored by Lycurgus. The ‘Great Rhetra’, as Plutarch called it, took the form of an oracle given by the Apollo of Delphi, which Lycurgus was said to have taken back to Sparta, to make it the foundational text on which to base the order of the city. In contrast to thesmos, which depended, so to speak, on the demiurgic power of the individual delivering it, rhêtra enjoyed a privileged link with the world of the gods – coming, as it did, from the mouth of one of them. The order of the city discovered in the divine order a kind of indirect origin, which conferred on it a ‘sacred’ dimension – an extraordinary quality establishing the rules by which it was defined in a dimension no longer accessible to everyone. It was no longer a question of a singular fiat, the work of a ‘thesmothete’ like Solon; but rather of a normative emanation of the divine, for which the legislator was just a humble spokesperson, bound by it like everyone else. When he decided to establish a form of isonomia in Athens, however, this was not what Cleisthenes was thinking: the nomoi he passed were claimed to be neither the emanation of another order, nor the simple result of a legislator’s desire. Cleisthenes had a completely different conception of ‘Law’ in mind, one where the main player in the legislative act would no longer be a god or a legislator, but the city itself.
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§4. Nemô. Along with the idea of ‘Law’, there also appeared in Greece the idea that the decisions taken by the leaders of the city required justification – a justification that did not simply take the form of a short circuit with the divine world. The word ‘nomos’ itself conveys the different significations that its history has introduced into it, all of which turn around what we might refer to as ‘measurement’. Nomos comes from metrology: it deals with the weighing of rights and duties within the city, just as, in music, it could signify the temporal unity with which participants must coordinate in order to play together. Because the ‘measurement’ in question is a shared [partagée] measurement – as suggested by the Indo-European root *nem, from which the verb nemô, meaning ‘to distribute’ (which gives us ‘nomos’), is, it would seem, derived. A measurement that was not shared would not be a measurement; it would be a kind of hapax, an incomparable singularity, incommensurable with any other, as arbitrary and without justification as a caprice. The irruption of the word ‘nomos’ into political and juridical discourse signals, therefore, the inauguration of an order of measurement, of a shared mechanism that would at last allow for the measurement of measurements. Nomos is what allocates to each the share to which they are entitled, the sum of which establishes the sharing of the city; it is the medium for ordering the order specific to the city, and of what is shared there. When he sought to institute isonomia in Athens, Cleisthenes did not intend anything but this: to confer on each their share – or to ensure that everyone received their due in the order of Law. Isonomia was the equality of Law and equality before the Law; it announced that from now on there would be a rule shared by all, and no longer only the unilateral imposition of the will of a few. This is the reason why many have seen here the first democratic moment of ancient Greece – and, to the extent that we continue to believe in the ‘Law’, in nomos, it is a moment that is still today our legacy.
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§5. Philosophy. A banal observation: the philosophical tradition followed immediately in the steps of Cleisthenes and his reforms, producing countless meditations on the theme of nomos, which we still read today. The best known of these are by Plato and Aristotle – but they are incomprehensible if we do not keep in mind that they were conceived in response to theories produced by the Sophists. In fact, at the beginning of the fifth century bce in Athens, the debate on the nature of nomos gave tangible form to the fault line that for a long time would delineate the opposition between philosophy and its outside. The nature of this outside is at first difficult to define – but we can say that, in the Sophists, it finds an incarnation through which it can be approached. Were they politicians, lawyers, lecturers or jurists? Maybe a bit of all at once; what is certain, however, is that, in contrast to the philosophers, the Sophists seemed to think that the invention of nomos brought little change to the order of the city. The invention of ‘Law’ was little more than a civilized, polite and dressed-up version of something the inhabitants of Athens had always respected without question – namely, custom, tradition or practice. If Plato and Aristotle decided to follow the change in political vocabulary put forward by Cleisthenes, each in his own way seeking to establish its meaning, it was because they thought otherwise. The order of the city could not be left to customs, traditions or practices, even if its administration